Kashikoto Conservancy Limited v Kaindu Natural Resources Trust, Royal Kafue Limited, Arthur Simangolwa and 365 Ors [2024] ZMCA 54 (15 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA APP. NO. 152 of 2023 HOLDEN AT LUSAKA ( Civil Jurisdiction) BETWEEN: AND APPELLANT KAINDU NATURAL RESOURCES TRUST 1 sT RESPONDENT ROYAL KAFUE LIMITED 2ND RESPONDENT ARTHUR SIMANGOLWA AND 3 65 OTHERS 3RD RESPONDENT Coram: Chashi, Siching a. and Sh,., .. rpe•Phiri, JJA On 30th April, and 15,1i May, 2 024 For the Appellant: Mr. E. Mutale of Mess rs Mus a Dudhia and Company For the Respondent: Mr. H. P. Hantu mbu of Messrs Mulezci Mwiimbu and Company JUDGIVIENT Sichinga, JA d elivered t h e Jud grnen c of r.:h t" C ourt. Cases referred to: 1. William David Carlisle v EF Hervey Limited / l 985) ZR 179 2. Manharial Harjf Patel v Surma Sw t:or,ers .:...-1m:r-::cl 12009) ZR 112 3. Bomiface Shantebe v Kaindu Natu ,-al Resou,ce.s Trust Registered Trustees and Royal Kafue Limited 2017/ HP/ 1082 J1 4. Zambezi Portland Cement Limited (In Receive rship) Suing through its Receiver and Manager Alfred Jack Lungu, and Robert Mbonani Simeza v Stanbic Bank Zambia Limited (2010) 2 ZR 745 5. BP Zambia Plc v Interland Motors Limited (2001) ZR 37 6. Republic of Botswana and Others v Mitre Limited SCZ 20 of 1995 7 . Raphael Ackim Namung 'andu v Lusaka City Council (1978) ZR 358 8. John Chisata v The Attorney-General SCZ Judgment No. 3 of 1992 Legislation referred to: l. The Rules of the Supreme Court of England (White Book) 1999 Edition 2. The Land (Perpetual Succession) Act, Chapter 186 of the Laws of Zambia 3. The High Court Act, Chapter 27 of the Laws of Zambia Other authorities referred to: 1. Zambian Civil Procedure Commentary and Cases Volume 1, Dr. Justice Patrick Matibini, Lexis Nexis 2. A Practical Approach to Civil Procedure 17th edition 3 . The Halsbury 's Laws of England 4th Edition Volume 37 4. Concise Oxford Dictionary of current English 4 th Edition 5. Black's Law Dictionary 5 th Edition, Reuters 1.0 Introduction 1. 1 This a ppeal is against a ruling of the High Court dated 12th October , 2022, substantially dismissing the 1st Defendant's (Kashikoto Conservancy Limited's) application to strike out the writ of summons and statement of claim and dismiss the action pursuant to Order 18 Rule 19 (1) (a) (b) and (d) of the J2 ..• Rules of the Supreme Court of England1 and pursuant to the court's inherent jurisdiction. 1.2 By an amended writ of summons and statement of claim dated 6 th April, 2022, Kaindu Natural Resources Trust, the 1st plaintiff (now 1 st respondent), Royal Kafue Limited, the 2 n d plaintiff (now 2 nd respondent), and Arthur Simangolwa and 365 others, the 3 rd plaintiffs (now 3 r d respondents) took out an action against Kashikoto Conservancy Limited, now the appellant, and others claiming the following reliefs: 1. Payment of the sum of $5,000,000.00 compensation of their damaged proper ties; 11. Da mages for loss of business; 111. Damages for loss of income; 1v. Damages for trespass; v. Da m ages for mental anguish; v1. Da m ages for fraudulent misrepresentation; v11 . Any other reliefs the Court may deem fit; vm. Interest thereon ; and lX. Costs. 2.0 Background 2.1 The brief background of this matter, as alleged by the plaintiffs in their statement of claim, is that: the 1 st plaintiff was a registered trust and owner of Farm 10415 situate at Kaindu area of Mumbwa; the 2 nd plaintiff, a company incorporated in Zambia was carrying on the business of tourism and leasing Farm 10465 from the 1 st plaintiff; and the 3 rd plaintiffs J3 collectively are and were at all material times peasant farmers and fishermen of Kaindu Chiefdom of Mumbwa District and Zambian citizens. 2 .2 It was averred that the 1st defendant is and was at all material times, a company incorporated in Zambia and carrying on the business of tourism and running a game ranch next to Farm 10415 Kaindu, Mumbwa. The 2nd and 3 rct defendants are villagers and residents of Chief Kaindu of Mumbwa District. The 4 th defendant is the Attorney General. The 2 nd to 4 th defendants are not a part of this appeal. 2.3 It was alleged that the defendants collectively misrepresented the 1 st plaintiff to the Zambia Police, as its trustees and lessees and claimed to own Farm 10415 and the surrounding land. That arising from this misrepresentation, the plaintiffs were removed by a team of heavily armed police officers. It was the 1st alleged that on or about 22nd November, 2021, defendant together with the police and game scouts stormed the said farm and beat any occupant found thereon, who were peasant farmers and fishermen utilizing the farm with the perm1ss1on of the 1 st p laintiff and the Kaindu Royal Establishment. 2 .4 It was alleged that the illegal eviction was characterized by violence, tear gas discharge and burning of shelter. That the plaintiffs suffered mental anguish and loss of business owing to the plaintiffs' actions and negligence. J4 2.5 The 1st defendant filed a memorandum of appearance and defence on 22nd April, 2022. It averred it was the legal owner of several farms including Farm No. 8584, which borders the 1 st plaintiff's Farm 10415. The defence states that the 2nct plaintiff's lease over Farm 10465 expired in or about 2020. That on or about 5 th February, 2021, the 1 st defendant leased Farm 10465 from the Registered Trustees of the Kain du Natural Resources Trust, and occupation of the ranch on 23rd February, 2021. the 1 st defendant took 2.6 Further, that the plaintiffs were trespassers, and neither the purported 1 st plaintiff nor 2 nd defendant could grant them consent to be on the land. The 1st defendant generally denied the plaintiffs' claims and asserted the claim for $5,000, 000.00 is not permissible to support the liquidated claim. 2.7 On 5 th May, 2022 , the 1st defendant filed summons to strike out writ of summons and statement of claim and dismiss action for disclosing no cause of action and that the action is scandalous or frivolous or vexatious or is otherwise an abuse of the court process. 3 .0 Decision of the court below 3.1 Mr. Justice Kafunda, after considering the issues raised in the application found that the 3 rd plaintiffs' case against the 1 st defendant lay in the latter's quest to possess Farm No. 10415, JS by bringing on site police officers who allegedly caused damage to the 3 rd plaintiffs. The learned Judge found that this was the factual situation alleged by the 3 rd plaintiffs which required to be proved at trial. That the 1st defendant had put up a defence that the 3 rd plaintiffs were squatters, which assertion could also be determined at trial. Kafunda J held that the 1 s t defendant's assertion that the 3 rd plaintiffs' pleadings did not disclose a cause of action lacked merit. 3.2 On the issue of the 1 st plaintiff's legal capacity or lack thereof as asserted by the 1st d efendant, Kafunda J considered section 2 of the Land (Perpetual Succession) Act2 and found that a trust, incorporated as such, can sue or be sued in its own right. That the 1 st plaintiff had exhibited its certificate of incorporation to show that it is a corporate body under the name, 'Kaindu Natural Resources Trust Registered Trustees.' The learned Judge found that the words 'Registered Trustees' had been omitted on the pleadings and ordered the pleadings to be amended. The learned Judge held that the 1s t plaintiff had capacity to sue or be sued, in like manner as a company or a corporation. 3. 3 As regards the existence of another matter in the High Court on the determination of who constitutes the Kaindu Natural Resources Trust, the learned Judge held the settlement of that question had no bearing in casu because the 1 st plaintiff took J6 out the action in its own right. That there was no close nexus between the two matters to constitute multiplicity of actions. 3.4 With respect to claim for US$5,000,000.00 not having been particularized, the learned Judge held that information that maybe contained in documents and attests to the special damage claimed constitutes evidence to prove a claim of special damages at trial or on assessment damages and does not suffice to fulfil the legal requirement of particularizing special damage in the pleadings. He held that the claim for special damages by the plaintiffs was irregular for failure to set out the particulars of the alleged special damages in the pleadings. 4.0 The appeal 4.1 The 1 st defendant, being dissatisfied with the ruling of the court below, lodged an appeal before this Court based on five grounds of appeal as follows: 1. The Court below erred in law and fact when it held that the plaintiffs' pleadings disclose a cause of action; 2 . The Court below erred in law and fact when it held that the 1 st plaintiff is a person at law with the legal capacity to sue and be sued; 3. The Court below erred in law and fact when it held at page R14 and R 15 that the question as to the identity of the proper officers of the 1st plaintiff has no material bearing on the present case; 4. The Court below erred law and fact despite acknowledging that there is an existing case to determine who constitutes the Kaindu Natural resources Trust under cause number 2021/HP/121. It held J7 that a finding under that cause does not nullify the actions of the 1 st plaintiff; and 5. The Court below erred in law and fact when it held that there is no nexus between the present case and the action under cause number 2021/HP/121. 5.0 Appellant's arguments 5.1 In support of t his a ppeal, Mr. Mutuli, learned counsel for the appellant r elied on the detailed heads of argument filed on 19 th May, 2023 and the heads of argument in reply filed on 27th June, 2023 . The summary of the arguments follow hereunder. 5 .2 The issue in the first ground of appeal, is whether the plaintiffs have a cause of action. Our attention was drawn to some authorities including the case of William David Car lisle v E. F Hervey Limited1 wh erein the Suprem e Court h eld that: "A cause of action is disclosed by pleadings whe n a factual situation is alleged which contains facts upon which a party can attach liability to the other or upon w hich he can establish a right or e ntitle ment to j udg m ent in his favour against the other." 5 .3 Th at in the case of Manharial Har.if Pa tel v Surma Stationers Limited2 the Supreme Cou rt held: "A cause of action is a factual situation, the existence of which entitles one person to obtain from the Court a remedy against another person." J8 5.4 The learned author of Zambian Civil Procedure Commentary and Cases1 volume 1 at page 139 was referred to where Dr. Justice Matibini states as follows : "Before counsel or a party commences an action, he must be satisfied that there is a cause of action cognizable by law. A cause of action means any fact or series of facts, which found a claim or relief that is the basis of the claim or relief. Alternatively, a cause of action is a factual situation, the existence of which entitles one to obtain from the court a remedy against another person." 5.5 It was submitted that these authorities are categorical that a cause of action refers to a fact or a series thereof which the plaintiff or claimant has as a right of claim against a defendant. That this position is supported by the learned author of A Practical Approach to Civil Procedure2 where he states at page 325 that ''. A cause of action that is unknown to the law will be struck out. " 5.6 It was argued that in the present case, a review of the respondent's statement of claim appearing at pages 70 to 74 of the record of appeal does not reveal a fact or a series thereof entitling the respondents to a claim recognised by the law. That the respondents erroneously pleaded that the appellant misrepresented to the State that it owns Farm No 10415 Mumbwa situate in the Central Province of Zambia (the "Land Subject of the Dispute"). It was contended that the Conservation and Collaboration Agreement and the lease agreement relating to the Land Subject of the Dispute, J9 executed by the appellant and the registered trustees of Kaindu Natural Resources Trust (KNRT), appearing at pages 94 to 132 of the record of appeal, granted the appellant a lease of 25 years from 11 February, 2021 over the Land Subject of the Dispute. It was submitted that this is clear evidence of the fact that for all intents and purposes, the appellant holds the Land Subject of the Dispute until the year 2046. This being the case, it is inconceivable that the respondents' claims hold any water as they have no right of claim since the Land Subject of the Dispute was in fact leased to it. 5.7 To illustrate that the appellant was in possession and control of the Land Subject of the Dispute we were referred to the certificate of occupancy relating to the land appearing at page 133 of the record of appeal, which states in paragraph 2 that: "Pursuant to Clause 3. 3 of the Agreement we hereby confirm that vacant possession of the Site has been given to KCL as of the 11 th of February 2021 AND WE FURTHER confirm that Royal Kafue Limited vacated the Site on the 23rd of March 2020 upon expiration of the Notice of Termination of Lease dated the 23rd of September 2019." 5.8 It was submitted the excerpt above and the certificate of occupation ver ify the appellant's position that it was granted vacant poss ession of the Land Subject of the Dispute and further that the 2 nd respondent has no right of claim contrary to the averments made in the statement of claim. 5. 9 Alternatively, the appellant submitted that the respondents do not come within the requisite criteria for rightfully claiming. JlO Reliance of this submission was placed on the learned authors of the Halsbury's Laws of England3 volume 37 at paragraph 216 which states that: "A person cannot be a plaintiff unless he has a vested interest in the subject matter of the action ... In an a ction/or tort the proper plaintiff is the person who has been injured by the wrongdoer, or the person in whom a right to sue is vested or by whom it has since been acquired. Where several persons are injured by a tort, any one of them may sue without joining the others." 5.10 It was advanced that the above authority is clear that for one to rightfully institute an action as a plaintiff, for an action in tort, one ought to have been injured by the wrongdoer's act or be a person in whom a right is vested. That in the present case, the registered trustees of the 1 st respondent have in fact leased the Land Subject of the Dispute to the appellant. That the 2 nd respondent's lease had expired long before. And the 3 rd respondents were trespassers and therefore have no right to claim. Furthermore, that there is still a dispute as to the legitimate trustees of KNRT yet to be determined. And the suit brought by the respondents is therefore incompetent. 5.11 As regards the 3 rd respondents, it was argued that they had no claim of right. We were referred to the case of Borniface Shantebe v Kaindu Natural Resources Trust Registered Trustees and Royal Kafue Limited3 appearing at pages 242 to 289 of the record of appeal, the court at page 283 of the Jll record of appeal found in relation to the Land Subject of the Dispute that: "The agricultural zone of farm No 10415 exists on the southern side. In my view, there is no need for the confusion created by some disgruntled subjects in the chiefdom. Their grudges against other members cannot be the basis for abolishing the game ranch. I opine that whereas the members of the community have unlimited access to the agricultural zone, they require permission to enter the game ranch given the nature of the activities carried on. 11 5 . 12 It was submitted that the above is testament of the fact that the portion of Farm No 10415 that is open to the community is the agricultural area and the Land Subject of the Dispute is the game ranch, which the 3 rd respondents required permission to enter given the nature of the activities carried on, that is conservation of Zambia's wildlife. Further, at page 282 of the record of appeal, the court on the evidence stated: "The CRB was informed of the decision on 4th November, 2003. As part of its procedures, the Council conducted an inspection of the proposed game ranch and some of its relevant findings were that: ... ii. The farm is vacant and has no squatters except some seasonal temporal fishermen, who disappear when the fish ban is effected ... " 5.13 It was argued that from the fore quoted, it is clear that at the time, there were no squatters on the Land Subject of the Dispute and that the farmers that were, at certain times J12 found thereon, were temporal and in the words of the court, "disappeared." 5.14 We were urged to find merit in ground one and uphold it. 5.15 Turning to ground two, with respect to the 1st respondent's legal capacity to sue and be sued, it was submitted that the law as regards trusts and trust properties has long been settled from the enactment of the Land (Perpetual Successions) Act supra which provides in section 2: "Trustees or a trustee may be appointed by any community of persons bound together by custom, religion, kinship or nationality or by any body or association of persons established for any religious, educational, literary, scientific, social or charitable purpose, or for any purpose which, in the opinion of the Minister, is for the benefit or welfare of the inhabitants of Zambia or any part thereof, and such trustees or trustee may apply in manner hereinafter mentioned, to the Minister for a certificate of registration of the trustees or trustee of such community, body or association of persons as a corporate body; and if the Minister, having regard to the extent, nature and objects and other circumstances of such community, body or association of persons, shall consider such incorporation expedient, he may grant such certificate accordingly, subject to such conditions or directions generally as he shall think fit to insert in such certificate, and particularly relating to the qualifications and number of the trustees, their tenure and avoidance of office, the mode of appointing new trustees, the custody and use of the common seal, the amount of land which such trustees may hold, and J13 the purposes for which such land may be held and used; and the trustees or trustee shall thereupon become a body corporate by the name described in the certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in such corporate name, and, subject to the condit ions a nd directions contained in the said certificate, to hold and acquire, and by instruments under such common seal to convey, assign and demise, any land or any interest therein now or hereafter belonging to, or held for the benefit of, such community, body or association of persons, in such and t he like manner, and subject to such restrictions and provisions as such trustees or trustee might, without such incorporat ion, hold or acquire, convey or assign, or demise the same f or the purposes of such community, body or association of persons." 5.16 It was submitted that the above position is trite law as regards the registration and/or incorporation of a trust and speaks to the issue of suing and being sued. That, unlike other entities, a trust is distinct, as it h as n o p ersona and acts through its registered trustees. The appellant takes issue with the court's holding t hat the 1 st respondent is a person at law contrary to what has b een expressed in a plethora of legal literature. We were referred to the learned author, Dr. Justice Patrick Matibini, in his book Zambian Civil Procedure: Cases and Materials Volume 1 supra, where he states at pages 56 and 57 that: "A trust is a legal institution in which a group of persons known as trustees hold and administer property separately from their own, on behalf and for the benefit of someone else J14 or for the furtherance of a charitable or other purpose... A trust does not have legal persona like a company or a corporation. It is sometimes said that trusts are strange legal entities. Because of their strange nature, they are usually referred to as sui generis; something different and unique. It is the trustees who must either sue or be sued, since the trust itself cannot either be a plaintiff or defendant unless one or more of the trustees are authorised by the others, you must sue all the trustees in their official capacity as trustees. Thus trustees sue or are sued in a representative capacity." 5.1 7 It was submitted that the postulations reproduced above are categorical that where a trust is to be sued or to sue, it ought to do so in the names of the trustees in a representative capacity. That is to say, all the names of the trustees are to be set out on the originating process along with the capacity in which they bring the action. It was advanced that the 1 st respondent did not set out a list of the trustees, as they did under cause number 2021 /HP/ 121 (the "Earlier Action") because they are aware of the pending determination of the legitimate trustees and thus proceeded to commence the action without setting out the names of the trustees. 5.1 8 To support their position they referred to the learned authors of the Halsbury's Laws of England supra, where they state at paragraph 216 t h at: "In actions concerning trust property the trustees are the proper plaintiffs, for the legal title is in them ... " JlS 5.19 We were also referred to the learned author of A Practical Approach to Civil Procedure supra, where he states at page 205 as follows: "Trustees, executors, and administrators should act jointly, and should all be named in any proceedings (as defendants if they will not consent at act as claimants) . ... " 5.20 It was submitted that the above excerpt is further testament of the fact that trustees are to sue and be sued in their own names, but in their capacity as trustees. That it was therefore an error on the part of the lower court to hold firstly that the 1 st respondent is a person at law and secondly, that it has the capacity to sue and be sued. 5 . 21 We were urged to allow the second ground of appeal and to set aside the lower court's finding. 5.22 In support of the third ground of appeal, it was summited that it is trite that when an action is commenced against an individual, that party is required to know who is bringing the action against them because if the matter is decided in their favour, they ought to be able to claim redress from such person for having needlessly dragged them to court. This is a safeguard to prevent busybodies from masquerading as trustees and taking out actions against innocent parties. Not only this , but it is also meant to prevent the abuse of the court process. 5.23 It was submitted that allowing the court in the earlier action and the lower court to determine the issue of the legitimate trustees of KNRT amounts to re-litigation on the part of the J16 respondents as the same subject matter is being determined by 2 different judges and there is a risk of having 2 conflicting decisions. On the issue of re-litigating and courts arriving at conflicting decisions married with abuse of the court process, Section 4 of the High Court Act3, which provides that: "Subject to any express statutory provision to the contrary, all the Judges shall have and may exercise, in all respects, equal power, authority and jurisdiction, and, subject as aforesaid, any Judge may exercise all or any part of the Jurisdiction by this Act or otherwise vested in the Court, and, for such purpose, shall be and fo rm a Court." 5. 24 It was a dvanced that the High Court Act is clear that all Judges of the High Court have and may exercise in all respects, equal power, aut hority and jurisdiction. That, this being the case, it is unthinkable that the determination of the legitimate trustees in the earlier action will not have a material bearing on the case from which the appeal arises, as both address the issue of the legitimate trustees, and in this case, the possession of the Land Subject of the Dispute . 5 .25 We were further referred to section 13 of the High Court Act which 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 the 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, interlocutory or final, to which any of the parties thereto may J17 appear to be entitled in respect of any and every legal or equitable claim or defence properly brought forward by them respectively or which shall appear in such cause 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." 5.26 It was advanced that the Supreme Court had occasion to address both sections 4 and 13 of the High Court Act in the case of Zambezi Portland Cement Limited (In Receivership) Suing through its Receiver and Manager Alfred Jack Lungu, and Robert Mbonani Simeza v Stanbic Bank Zambia Limited4 held that: "On appeal, the Supreme Court disapproved of parties commencing a multiplicity of procedures and proceedings and indeed a multiplicity of actions over the same subject matter. The mischief that the Supreme Court was wary of was the possibility that various Courts may end up making conflicting _and contradictory decisions because parties had started several actions in different Courts." 5.27 Further, that the rationale of section 4 referred to above, and in addition section 13 of the High Court Act, was clearly expounded in the case of BP Zambia Pie v Interland Motors Limited5 where Ngulube CJ held as follows at p 41: "For our part we are satisfied that as a general rule it will be regarded as an abuse of process if the same parties re-litigate J18 the same subject matter from one action to another or from judge to judge. This will be so especially where the issues become res judicata, or when all the issues which should have been resolved once and/or all by the first Court as enjoined by section 13 of the High Court Act. In terms of the section [s. 13) and in conformity with the Court's inherent power to prevent 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 before various Courts. The administration of justice would be brought into disrepute if a party managed to get conflicting decisions or decisions which undermine each other from two or more different judges over the same subject matter." 5.28 It was argued that an error on the part of the lower court to find that the identity of the proper officers of KNRT is immaterial. We were urged to find merit in ground three and allow it. 5.29 In support of the fourth ground of appeal, our attention was drawn to the lower court's ruling in the earlier action dated 9 th April, 2021. The Ruling was in respect of an application made by the plaintiffs in that action ("First Trustees") for an interlocutory injunction restraining the defendants in that same action ("Second Trustees") from holding themselves out as trustees of KNRT. The court in refusing to grant the First Trustees an interlocutory injunction stated as follows: "The object of granting an interlocutory injunction is to preserve the status quo. As rightly noted by the Defendants' counsel, the question that begs an answer is, what is the J19 .. status quo in the present case? The Plaintiffs' counsel suggested that the status quo was in favour of the Plaintiff. .. The status quo at least from a de facto analysis as to who at present is in-charge of the Trust tilts in favour of the Defendants, consequently the balance of convenience for now favours the Defendants, unless and until the matter is effectually and finally determined." 5. 30 The finding in the Ruling was that pending determination of the matter, the de facto status qua, that is, the existing state of things as a matter of fact, was that the Trustees, other than the 1 s t respondent, were t he trustees of KNRT. Further, that the balance of convenience was in favour of the said trustees, and not the 1st respondent. The appellant argued that until the determination of the matter in the Earlier Action, the 1 st respondent is not the rightful person to act as trustees of KNRT and to drive the interests of KNRT, as a matter of fact. 5.31 In sum, the appellants contend that the actions b y the 1 st respondent are in fact vexatious as their claims hold no water. In support of this submission, reliance was placed on the learned author of A Practical Approach to Civil Procedure supra where the author states: "A small minority of litigants misuse the freedom of access to the courts by launching large numbers of unmeritorious actions or numerous interim applications, causing a great deal of anxiety and trouble to their victims, and usually with little prospect of costs being recovered." 5.32 It was submitted that the respondents' claims lack m erit and are efforts aimed at frustr ating the appellant. That, if the lower J20 court found for the appellant, the respondents would not be able to pay it its costs as their action is frivolous and vexatious. We were urged to allow ground four. 5.33 In support of ground five, we were referred to the authors of the Concise Oxford dictionary of current Eng lish4 which at page 796 defines a 'nexus' as a bond, link, or connection. That when applied to the present case, it cannot be said that there is no nexus between the earlier action and the present action. It was submitted that this ground has merit and ought to be allowed. 6.0 Respondents' arguments 6.1 In opposing the appeal, Mr. Hantumbu, learned counsel for the respondents, placed reliance on the respondents' heads of argument filed on 16 th June, 2023. Each ground of appeal is dealt with separately. 6.2 In opposing the first ground of appeal, the respondents equally referred to the case of William David Carlisle Wise v E. F Hervey Limited supra and the definition of 'cause of action.' We were also referred to the learned authors of Black's Law Dictionary5 a t page 201 which defines 'cause of action' as follows: "The fact or facts which give a person a right to judicial relief. The legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or a state of facts which J21 ... would entitle a party to sustain an action and give him right to seek a judicial remedy in his behalf. .. " 6.3 It was submitted that the respondents disclosed factual situations that led to this action. That the majority of the 3rd respondents disclosed that they were fishermen who had been carrying out fishing activities along the land between Kaluwenyembe river and Farm No. 10415 for a long time. The minority of the 3 rd respondents disclosed they were farming on the said farm and also the land between the farm and Kaluwenyembe stream. 6.4 The 1 s t respondent argued that they were unlawfully evicted by the appellants. They contended that the 2 nd respondent has a subsisting lease agreement between it and the 1 st respondent. They referred the Court to various contentious issues between the parties, which they argued ought to be settled at trial. On this note, we were urged to dismiss the first ground of appeal for want of merit. 6.5 In opposing the second ground of appeal, we were referred to the case of the Republic of Botswana and Others v Mitre Limited6 where at page 116 the Supreme Court held as follows: "As regards whether or not the rule is mandatory or directory and therefore discretionary, we wish to refer to Order 2 Rule 1(1) of the White Book, 1995 Edition, and Volume 1 and to our decision in Leopold Walford case cited by Mr Kawanambulu. 0.2 r 1(1) provides as follows: J22 ' • "Where, in beginning or purporting to begin any proceedings or at any stage i n the course of or in connection with any proceedings, there has, by reason of any other respect the failure shall be treated as an irregularity and shall not of these rules, whether in respect of time, place, manner, form or content or in anything done or left undone, been a failure to comply with the requirements judgment or order herein nullify the proceedings any step taken in the proceedings or any document, judgment or order herein." And in Leopold Walford case at page 205 the court said: "As a general rule, breach of a regulatory rule is curable and not fatal." The High Court rules, like the English rules, are rules of procedure and therefore regulatory and any breach of these rules should be treated as mere, irregularity which is curable." 6.6 It was submitted that the court below acknowledged that the 1 s t respondent's correct name is Kaindu Natural Resources Trust Registered Trustees and that it was an omission of the words "Registered Trustees " on the writ as shown on pages 34 of the record of appeal. That the court below had powers to order amendment of the 1 st respondent pursuant to Order 3 rule 2 of the High Court Rules3. The respondents urged us to dismiss this ground for lack of merit. 6.7 In response to ground three, it was submitted that the court below amended the 1 st respondent's name to read 'Kaindu Natural Resources Trust Registered Trustees ' which is a body corporate and had the capacity to sue and b e sued. Further, J23 that the trust once registered, has perpetual succession even if the term of office bearers comes to an end. We were referred to Section 2 of the Lands (Perpetual Succession) Act as quoted above, and submissions in respect of ground two. 6.8 It was submitted that t h e court below was on firm ground when it held that the 1 s t respondent can take out an action in its own right as the above provision clothes it with legal capacity to do so. That it is untenable for the appellant to insist that section 2 of the Lands (Perpetual Succession) Act does not allow the 1st respondent to sue in its own capacity. It was argued that the reliefs being sought by the respondents in the court below relate to the alleged damages suffered by the respondents at the hands of the appellants. That the 1 st respondent does not seek any r eliefs, whatsoever, in its own right in the cause 2021/HP/ 121. 6.9 It was contended that the lower court was on firm ground in holding that there is no nexus between this matter and the matter under cause No. 2021 /HP/ 121. 6.10 We were urged to dismiss ground three for lack of m erit. 6. 11 In response to ground four, the respondents argued that the court below did not grant any relief to appellants under cause number 2021/HP/ 121. That the lower court never declared the appellants herein, who include Bornface Chisoshi and Humphrey Kabinda, as the legitimate trustees of KNRT. It was submitted that there is no possibility of conflicting decisions as the reliefs sought in the lower court are different. The J24 respondent advanced that ground four lacks merit and ou ght to be dismissed. 6.12 On gr ou n d five, it was sub m itted th a t there is no link between the lands that lay between Farm No. 10415 and Kaluwenyembe River where the majority of the 3 rd respondents were found. That their properties were destroyed at the instance of the appellant and the Zambia Police. They allege that they have suffered damages that ought to be atoned by the appellants. The respondents repeated the arguments under ground four to the effect that it was a misleading assertion on the part of the appellant that there is a chance the lower court may end up making conflicting and contradictory decisions when the reliefs being sought are completely different in each case. We were urged to dismiss ground five for want of merit. 7.0 Appellant's reply 7. 1 In reply to th e respondents' argum en ts und er grou n d one, t h e a p pellant reiterate that a person cannot be a plaintiff unless he has a vested interest in the subject matter of the action . In support of this submission we were referred to the learned authors of the Hal.sbury's Laws of England supra volume 37 at paragraph 216 which states that: "A person cannot be a plaintiff unless he has a vested interest in the subject matter of the action ... " 7.2 It was submitted that it is trite law that squatters or trespassers have no vested interest on the land they occupy J25 without perm1ss1on from the owner of the land. The case of Raphael Ackim Namung'andu v Lusaka City Council7 referred to. 7. 3 We were urged to allow the appeal on the fact that the respondents neither have an interest nor rights over the subject land. 7.4 In reply to ground three, it was advanced that a perusal of the statement of claim taken out by the respondents will show that the cause of action against the appellant is fraudulent misrepresentation. That the particulars of misrepresentation alleged by the respondent is that it misrepresented inter alia: "(i) That 2 nd and 3rd Defendant were Trustees of the 1st Plaintiff when in fact not." 7.5 It was argued that the contention by the respondents that the action herein has nothing to do with the registered trustees of the 1 st respondent is misconceived. That the question as to the identity of the proper trustees of the 1 st respondent has a material bearing on the present case. We were urged to uphold ground three of the appeal. 7.6 In reply to the fifth ground of appeal, it was argued that the fact that there was a dispute over wheth er or not the appellant executed the lease agreement with the correct trustees shows there is a nexus between the lease relied on by the appellant and the proper trustees of the 1 st respondent. We were therefore, urged to allow ground five of the appeal and the appeal in its entirety. J26 8.0 Our considerations and decision 8.1 We have considered this appeal, read the ruling appealed against and analyzed the heads of argument filed on behalf of the parties. 8.2 In the first ground of appeal, counsel for the appellant has belaboured to show, with authorities, what a cause of action is and has argued, forcefully that the respondents have no right of claim. The learned Judge in the court below took heed of the Supreme Court's holding in the case of William David Carlisle v EF Hervey Limited supra that a cause of action is disclosed by pleadings when a factual situation is alleged which contains facts upon which a party can attach liability to the other or upon which a party establish a right or entitlement to judgment. 8.3 It is trite law that a cause of action refers to the legal basis or grounds on which a party can bring a lawsuit or a claim against another party in a court of law. It represents a specific set of facts and legal basis upon which a claim for relief is based. For negligence based tort claims, t he cause of action generally starts on the date on which the damage is suffered, that is, the date on which a quantifiable or ascertainable loss is suffered. The learned authors of Halsbury's Laws of England supra define a cause of action at paragraph 21 as follows: "'Cause of action' has been defined as meaning simply the facts the existence of which entitles one person to obtain from J27 the court a remedy against another person. The phrase has been held from the earliest time to include every fact which is necessary to be proved to entitle the claimant to succeed, and every fact which the defendant would have a right to dispute. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the claimant his cause of complaint, or the subject matter or grievance founding the claim, not merely the technical cause of action." 8.4 In the present case, appellant alleged in the statement of claim (pages 70 to 7 4 of the record of appeal) that on 11 th February, 2021, it entered into a Conservation Agreement and a Lease Agreement with the Registered Trustees of the Kaindu Natural Resources Trust for the entire 15,000 hectares of the Kaindu Game Ranch. That it took possession of the said ranch on 23rd February, 2021. It was further averred in the affidavit of George Samaras filed in support of summons to strike out writ of summons and statement of claim and dismiss action filed on 5 th May, 2022, that the appellant has never consented to the respondents (plaintiffs in the court below) coming on to the disputed land being Farm 10415, Mumbwa. Page 89 to 92 of the record of appeal refer. 8. 5 In response to the above avermen ts, the 1 st respondent ( 1 s t plaintiff in the court below) through its affidavit in opposition to the summons to strike out writ of summons and statement of claim and dismiss action, deposed to by one Frazer Chiliboyi, one of its purported registered trustees and secretary, stated J28 that th e 2 n d and 3 rd defendants were not trustees and had no capacity to enter into a lease agreement on behalf of the 1 st respondent ( 1 st plaintiff). Page 175 to 1 79 of the record of appeal refer. 8.6 In our view, the factual situation that gave rise to the claim is found in paragraph 9 of the statement of claim filed on 5 th April, 2022. The 1 st respondent ( 1 s t plaintiff) alleges that on or a bout 22nd November, 202 1 the appellant acting together with the 4 th defendant stormed t h e disputed farm and beat up those found thereon including the 3 rd respondents. The plaintiffs allege they were illegally evicted from the disputed farm, which action was characterized by violence, teargas discharge and burning of their shelter. That this action caused to them suffering, loss, mental anguish and anxiety. 8.7 Their cause of action is founded in tortious claims, for which they seek, in the main, damages. Upon an analysis of the pleadings, the learned J udge found as follows at page Rl0 (page 3 1 of the record of a ppeal): "The foregoing, in my view, is the factual situation alleged by the 3 rd plaintiffs, which if proven, would attach liability to the 1 st defendant. On the other hand, the assertion by the 1 st defendant that the 3 rd plaintiffs were squatters, is a defence to the said factual situation alleged by the 3 rd plaintiffs. The two positions can only be settled by the evidence to be tested by way of trial. That being the case, an assertion that the 3 rd J29 . . plaintiffs' pleadings do not disclose a cause of action lacks merit." 8.8 In our view, we cannot fault the learned Judge for the position he took after a careful perusal of the pleadings and the positions of the parties. The first ground of appeal therefore lacks merit. 8.9 With respect to the second ground of appeal, the appellant submitted that the 1 st respondent is not a person at law with legal capacity to sue and be sued. That therefore, the court below should not have made a finding that the 1st respondent (the 1 st plaintiff) had capacity to sue and proceed to order that the pleadings and writ be amended to indicate that the 1s t respondent was suing as registered trustees. The learned Judge found that the 1 st respondent (1 st plaintiff) had exhibited its certificate of incorporation. That this attested to the fact that the 1st respondent (1 st plaintiff) was a corporate body. He found that the 1 st respondent omitted the words, «Registered Trustees" on the writ and ordered the pleadings to be amended accordingly. The learned Judge went on to hold that the 1 st respondent has the legal capacity to sue or be sued just like a company or a corporation, subject to the limitations prescribed by the incorporating law. 8 .10 The import of section 2 of the Land (Perpetual Succession) Act supra is that a trust on its own has no legal capacity to sue or be sued in its own right, unless a board of trustees is J30 · . .. incorporated in its favour , which can then sue or be sued in its representative capacity. 8.11 Counsel for the appellant referred to various authorities on the point that trustees are to sue and be sued in their own names, but in their capacities as trustees. At the risk of being repetitive with the appellant's submissions, we affirm that that is indeed the accurate position of the law. Trustees should act jointly, and all should be named in any suit as plaintiffs, if they are the claimants on b ehalf of an unincorporated trust, which is not the position in casu, where the trust is incorporated under the Act. 8 .12 The lower court did, in fact, find that the expression of the 1 st respondent as merely a 'trust, ' was an irregularity, however, not fatal. Therefore, it proceeded to order that the pleadings and writ be amended. Practice Note 15/6/16 of the Rules of the Supreme Court of England supra is instructive in this regard. 8 . 13 Further, we a re guided by the principle that triable issues ought to b e h eard on the m erits and not circumvented by rules of procedure . The Supreme Court has pronounced its guidance on this point in a plethora of authorities including but not limited to the case of John Chisata v The Attorney-General8 where it h eld as follows : "We cannot stress too strongly what we have said in the past, that such cases should wherever possible, and where there is no prejudice to either party by some irregularity, be allowed to J31 come to trial so that the issues may properly be resolved. Interlocutory orders which prevent this should be avoided." 8.14 We take the view that there was no prejudice occasioned to either party by the amendment effected by the court to reflect the correct party at law. The second gr ound is misconceived and we accordingly dismiss it. 8.15 Turning to the third ground of app eal, the Judge held a t pages Rl4 to RlS as follows : "In the view of the Court, the question of who are the proper officers of the 1 st Plaintiff being determined before the other Court has no material bearing on the case in casu because the 1st plaintiff is suing in its own right. Even if it was to be determined in the other Court that, in fact it is the 2 nd and 3 rd Defendants who a.re the proper officers of the 1st Plaintiff, that fin ding does not necessarily nu llify the actions of the 1 st Plaintiff as a corporate body, because the 1 st Plaintiff, acting as such, assumes its own rights and obligations." 8.17 It is the above finding of the lower court that the appellant takes issue with. Under the second ground of appeal, we have found that the trust in casu was registered pursuant to section 2 of the Lands (Perpetual Succession) Act which permits for the 1st respondent to sue in its own capacity. At pages 134 to 148 of the record of appeal are pleadings in respect of cause number 2021/HP/121 in which the 1st respondent is the 1s t plaintiff seeking, in the m ain , declara tory orders for inter alia J32 the rightful and duly elected Tru stees of the 1 st respondent herein. It is clear in our view, that the outcome of that matter would not have a bearing on the p r esent case wh ere the issue of the rightful trustees of the 1 s L r esponden t h a s not been raised in the pleadings. 8.18 We accordingly find no m erit in ground th ree of the appeal and dismiss it as there was n o nexus between the matter under cause 2021/HP/1211 and the present cas e . 8. 19 Our findings in grounds two and three extend to grounds four and five. In light of our previou s findings, grounds four and five are rendered otiose. 9.0 Conclusion 9 . 1 In the net result, the appea l is dismissed in its entirety. We refer the matter back to the High rt before the same Judge for to issue orders for direction. 9.2 We award costs of this a 1 sL respondent, same to be taxed in default of agreement. COURT OF APPEAL JUDGE G?. F N. A. Sharpe-Phiri COURT OF APP COURT OF APPEAL JUDGE J33