Ngoma & Others v LCM Company Limited & Another (S.C.Z. Judgment 22 of 1999) [1999] ZMSC 18 (10 May 1999)

LONDON NGOMA, JOSEPH BIYELA, RICHARD NG’OMBE, FRIDAY SIMWANZA AND LCM COMPANY LIMITED AND UNITED BUS COMPANY OF ZAMBIA LTD (LIQUIDATOR) SUPREME COURT BWEUPE, D. C. J., CHAILA, CHIRWA, JJ. S. ND TH APRIL, 1998 AND 11 (S. C. Z JUDGMENT NO. 22 OF 1999) S. C. Z. APPEAL NO. 91 OF 1997 MAY, 1999 . Flynote Civil Procedure – Joinder of Parties – Interested Parties – Rule 67 of Supreme Court Rules – Headnote The appellants were sitting tenants of the premises, the subject of litigation. The tenants were nd nd offered the properties to buy by the 2 respondent. The appellants accepted the offers and st paid deposits. Later the 2 respondent entered into an agreement with the 1 respondent and offered the properties for sale to the 1 respondent. The 2 was taken to court by the st nd respondent. The appellants were not made parties to the action. They were further not given notice about the action. During the proceedings for specific performance, the parties obtained consent judgment. The appellants then applied to be joined to the action but the court dismissed their application on the ground that they could not be joined after consent judgment had been obtained. st Held: (i) (ii) That the appellants had interest in the matter and they should therefore have been notified of any action taking place concerning the properties on which they had paid deposits and which were subject of the contract. That the lower court erred in holding that the appellants could not be joined to the action after consent judgment had been granted; the consent judgment was one of which the appellants were not parties and were not aware of a hearing. Case referred to: 1. The Attorney General v Aboubacar Tall and Zambia Airways Corporation Limited, (S. C. Z. Judgment No. 5 of 1995). For the Appellants: Mr. L. P. Mwanawasa, SC. For the Respondents: ________________________________________ Judgment CHAILA, J. S.: delivered the judgment of the court. Mr. D. Bukali, Musonda & Company. This is an appeal by the appellants against the decision of the High Court exercising its appellate jurisdiction. The matter came before the District Registrar on appeal to the High Court. When the matter came before us at Kabwe, nobody appeared on behalf of the respondents. We were told that the respondents had been served with the notices of hearing. The court decided to proceed with the hearing of the appeal. We would like further to point out that after the matter had been heard, advocates for the respondents filed on 29 June, 1998, heads of argument for the 1 respondent. For the 2 respondent, we had heads of st nd th argument which were filed by Messrs Musonda and Company on 22 will consider their heads in our judgment. nd September, 1997. We The brief history of the case is that the appellants were sitting tenants of the premises, the subject of the litigation. The tenants were offered the properties to buy by the 2 respondent. nd The appellants accepted the offers and paid deposits. Later the 2 st nd an agreement with the 1 respondent and offered the properties for sale to the 1 respondent was taken to court for specific performance by the 1 respondent. The 2 respondent. The appellants were not made parties to the action. They were further not given notice about the action. During the proceedings for specific performance, the parties obtained a consent judgment. The appellants then took out summons and applied to be joined to the action and requested the court to set aside the consent judgment. The District Registrar dismissed the case. The appellants then appealed to the High Court. nd respondent entered into st st Mr. Mwanawasa for the appellants has submitted three grounds. These are: 1. 2. 3. The appellants as interested parties in the properties the subject of this action, ought to have been heard by the court before judgment was entered and accordingly it was competent for them to apply to set aside the judgments and to be joined as parties to the action. Order 13/9/3 of the R. S. C. was in their favour and the court should have so ruled.. It was immaterial that judgment had already been entered at the time when the appellants made their application. On ground 1, Mr. Mwanawasa has submitted that the properties which had been offered to the appellants had been accepted and deposits of 10% has been paid. The liquidator later offered the properties to the other people. Under Order 13/9/3 of the Rules, the appellants’ application to be joined to the action was dismissed. He has submitted that his clients are interested parties and ought to have been joined to the action and they were entitled to set aside the consent order for judgment so that it could be heard. st Advocate for the 1 respondent argued that the appellants lost their legal rights in the properties and cannot apply to be joined as parties to the matter after judgment. The advocate argued further that at the time of this action, the appellants’ only right lay against the liquidator in a suit of damages for breach of contract, if any. He argued that the application for joinder can only be made before judgment of the court. He further argued that specific performance cannot be granted unless there is a concluded contract which is complete and certain. nd For the 2 respondent, the advocate argued in his written heads of argument that the fact that they were sitting tenants does not confer a right upon them to be made party to any proceedings touching or affecting the property in respect of which he or she is a tenant. Consequently, there was no requirement on the part of the respondents to serve any notice of the proceedings on the appellants. They have argued that only a party to the proceedings need to be served with notice of proceedings. nd On the deposits paid by the appellants, the advocates submitted that appellants were not interested parties who ought to have been made party to the proceedings between the 1 and st respondents. They have argued further that the appellants’ application was not made in time. The application was made after judgment had been obtained. They further supported the finding of the Judge which was, “In any case I do not see how the applicants could apply to set aside a consent judgment to which they are not party.” On ground 2, Mr Mwanawasa in his written heads of argument argued that the appellants had parties who had locus standi and have a direct interest in setting shown that they were 3 aside the consent judgment as such. In terms of Order 13/9/3 of the Supreme Court Rules, the judgment ought to have been set aside and the appellants joined to the action as parties. rd Advocates for the respondents have argued that Order 13/9/3 Rules of the Supreme Court was not in favour of the appellants in this matter. They have argued that that Order applied only to judgments in default and not to consent judgments. On ground 3, Mr. Mwanawasa submitted that it was immaterial that judgment had already been entered at the time when his clients made their application to be joined to the action and to set aside the judgment. Advocates for the respondents have relied on the case of The Attorney General v Aboubacar Tall and Zambia Airways Corporation Limited, (S. C. Z. Judgment No. 5 of 1995). From the submissions of the parties it can clearly be seen that there are two issues which have been raised. The first issue is whether or not the appellants were interested parties to qualify nd to be joined to the action. The facts as found by the learned trial Judge are that the 2 respondent as liquidator of UBZ entered into a contract with the appellants to sell the properties to them. The appellants, accepting the offers, paid deposits. The appellate Judge found that there was no formal agreement executed between the 2 respondent and the appellants but the papers on file provided sufficient memorandum to show that the agreement the appellants talked about actually existed. This finding defeats the argument of the nd advocates of the 1 respondent which spoke about specific performance and which alluded to the fact that specific performance cannot be granted until there is a concluded agreement and it is complete and certain. The finding by the appellant court was that the contract did exist. This contract was followed up by the payment of deposits of 10%. In equity a person who has paid deposit should be regarded as the owner. Here the appellants entered into contract with st st the 1 respondent. They paid deposits and a special interest therefore, was created. The respondents’ counsel have argued that there was no need to serve notice of action on the appellants since they had no interest in the matter. The facts show that the appellants had interest in the matter and they should therefore have been notified of any action taking place concerning the properties on which they had paid deposits and which were subject of the contract. The advocates for the respondents have seriously and vigorously argued that the appellants cannot be joined after the consent judgment had been obtained. We would like to refer to Rule 67 of the Supreme Court Rules. This Rule provides that parties can be joined even after judgment. Rule 67 provides: “When an appeal is called for hearing or at any previous time the court or 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 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 original parties. In any case the court or Judge thereof may direct that any additional copies of the record or respondent’s notice which may be necessary be prepared and served by any party upon any person and may prescribe the time therefore.” The arguments by the respondents that the appellants cannot be joined after the consent judgment has been entered cannot be supported. The learned District Registrar erred in dismissing their application on the ground that they cannot be joined since a consent judgment had been obtained. In accordance with our decision in The Attorney General v Aboubacar Tall case, the court has inherent jurisdiction. The appeal will succeed on this ground alone. The appeal is allowed. There is no need to consider grounds 2 and 3. In any event, ground 2 talks about Order 13/9/3. The appellants shall be jointed as parties to the action and they are hereby joined. There was consent judgment of which they were not parties and were not aware of a hearing. This judgment is stayed until the matter is determined. The case is remitted to the District Registrar to consider the appellants’ application for setting aside consent judgment. The appeal is allowed. Appeal allowed _________________________________________