Lt. Col. Henry Muyoba and Ors v Lazarus Mulenga Mwiche (Suing in his capacity as Secretary General of the United National Independence Party) (APPEAL NO. 167/2022) [2023] ZMCA 325 (22 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (CIVIL JURISDICTION) APPEAL NO. 167 /2022 BETWEEN LT. COL. HENRY MUYOBA REV. ALFRED BANDA TILYENJI CHANDA KAUNDA NJEKWA ANAMELA MANUEL NGAMBI JOHN ALLAN SANDWE WELFARE MFUNE JAMES KABUYANA FRASER KAONGA ROSEMARY ZIMBA BANDA AND OTHERS UNKNOWN UBLICO OURT OF4 --- - 2 2 NOV 2023 - -=::-:-:----1 K 0 i=cou AND LAZARUS MULENGA MWICHE (Suing in his capacity as Secretary General of the United National Independence Party) CORAM: CHASHI, NGULUBE AND PATEL, JJA ON: 15t h and 22nd November, 2023 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT STH APPELLANT APPELLANT APPELLANT APPELLANT TH APPELLANT 10TH APPELLANT 11 TH APPELLANT RESPONDENT For the 1st, 5fh, 6 th, 8 th and 9th Appellants: E. Tembo, Messrs Wamunyima Legal Practitioners For 2nd, J rd, 4 th, 7fh, 10th and 11 th Appellants: NI A For the Respondent: A. D. M. Mumba, Messrs A. D. Mwansa Mumba & Associates JUDGMENT CHASHI JA, delivered the J u dgm ent of the Court. Cases referred to: J2 1. BP Zambia v lnterland Motors Limited-SCZ Judgment No. 5 of 2001 2. Mayawa Liuwa v The Attorney General (2014) ZR, 404 3. Nkana Alloy Smelting Company Limited v The Attorney General (2016) ZR, 95 4. Societe Nationale Des Chemis De Pur Du Congo (SNCC) v Joseph Nonde Kakonde and Borniface Lubanza v Arnold Pauwels (2013) ZR, 51 5. Development Bank of Zambia and Another v Sunvest Limited and Another (1995-1997) ZR, 187 1.0 INTRODCUTION 1.1 This is an appeal against the Ruling of the Hon. Mr. Justice Charles Zulu delivered on 18th January 2022. In the said Ruling, the learned Judge dismissed the Appellant's application for an Order to dismiss matter for being res judicata and found that the subject matter under Cause No. 2019 /HP/ 1237 and Cause No. 2021 /HP / 0504 were distinguishable and the parties were different. 2.0 BACKGROUND J3 2.1 The brief facts of this appeal are that, on 8 th May 2021, the Respondent under Cause No. 2021/HP/0504 commenced an action against the Appellants by way of Writ of Summons, seeking the following reliefs: 1. An Order that the former interim Party Chairperson of the Joint Committee, immediate past members of the UNIP Central Committee and other Party Members, desist and stop misrepresenting themselves as faction UNIP interim President, Chairperson of the Joint Committee, General Secretary, Party President, Party Vice President, Party Administrative Secretary and/ or as members of the Central Committee of UNIP. 2. An Order estopping the Appellants from interfering with the administration and management of the UNIP, howsoever, by the Central Committee elected during the Party Congress of 2 nd to 4 th April 2021. J4 3. An Order restraining the Appellants from interfering with and obstructing the elected UNIP President, Bishop Trevor M. Mwamba and Members of the Central Committee from formalizing the change of office bearers at the Societies Registry. 4. An Order restraining the Appellants from interfering with and obstructing members of the Party from participating and/ or contesting at various levels of the Presidential and General elections to be held on 12th August 2021, to be exclusively processed and facilitated by the Party Central Committee elected into office following the recent National Congress duly held from 2 nd to 4 th April 2021. 5. An Order of injunction restraining the Appellants from interfering with and obstructing the Respondent and the entire Central Committee in the general administration and management of the Party and further, members participation and contesting at various levels of JS the presidential and general elections to be held on 12th August, 2021 and further from making/ issuing press statements whatsoever purporting to be elected leaders of UNIP. 6. Any other relief or remedy the Court may deem fit. 7. Costs of and incidental to this action. 2.2 The Appellants subsequently took out an application to dismiss the matter for multiplicity of action and abuse of court process. The Appellants alleged that, there was already an active matter taken out by way of Writ of Summons under Cause No. 2019/HP/1237, on 6 th August 2019, before Muma, J and the reliefs sought therein were: 1. An Order that the outgoing MCCs and the recognized interim MCCs follow the Registrar of Societies administrative directive to jointly organize and hold a Congress by forming one working group. J6 2. An injunction to restrain the Defendants from performing any functions of UNIP MCCs, save for those to prepare for Congress in consultation with the interim Central Committee recognized by Registrar of Societies. 3. An account of all the Party assets sold from 2000 to date. 4. Production of a full UNIP inventory of assets and funds within and outside the Country. 5. Any further relief the court may deem fit. 6. Costs. 2.3 That an examination of the earlier proceedings and the current action, revealed that they were substantially the same and were premised on the leadership of UNIP. That therefore, the current action amounted to multiplicity of actions and abuse of court process. 2.4 The Respondents opposed the application, alleging that the facts surrounding the present action and the earlier proceedings were distinguishable in terms of the parties and reliefs being sought. That the issue in the present action was against the Appellant's interference in the J7 Party's administration and management, following the Party's elective congress held on 2 nd to 4 th April 2021 , which ushered in the new members of the central committee while the earlier proceedings were about the holding of congress and rendering an account of the Party's assets. That the two were distinct and therefore, there was no abuse of court process. 3 .0 RULING OF THE COURT BELOW 3.1 Upon considering the affidavit evidence and the arguments for and against the application, the learned Judge relying on the case of BP Zambia v Interland Motors Limited 1 was of the view that in order to establish that multiplicity of actions, amounting to abuse of the process of court exist, a two pronged approach ought to be applied. Firstly, whether the parties in the two actions are the same and secondly, whether the subject matter is the same. 3.2 The learned Judge was of the view that Cause No. 2019 /HP/ 1237 is distinguishable from Cause No. 2021/HP/0504, in that the subject matters or the causes J8 of action were totally different. That the cause of action in Cause No. 2021/HP/0504, arose post the holding of the elective party congress which was held on 2nd to 4 th April 2021, whilst the cause of action in cause No. 2019/HP/1237, allegedly occurred in 2005, against the previous leadership, whose term of office supposedly came to an end in April 2021 . 3.3 The learned Judge also found that the parties were different. Based on the foregoing, the learned Judge was of the view that the claim that the present action is res judicata is unfounded. The application was accordingly dismissed. 4.0 THE APPEAL 4 .1 Dissatisfied with the decision of the lower court, the Appellant has appealed to this Court advancing three (3) grounds of appeal as follows: 1. The Judge in the court below erred in law and fact when he held that the subject matter under cause number 2019 /HP/ 1237, before Hon. Judge Muma, is different from the one under cause number 2021/HP/0504 before him. J9 2. The Judge in the court below erred in law and fact when he held that the matter under cause number 2019/HP/ 1237, before Hon. Judge Muma and the matter under cause number 2021/HP/0504, does not amount to multiplicity of actions and abuse of court process when in fact the issue in dispute is over UNIP leadership in the two matters. 3. The Judge in the court below erred in law and fact when he held that the cause of action in cause number 2019/HP/ 1237, occurred in 2005 against the previous leadership of UNIP, when there was no such a matter in the said year. 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5 . 1 In support of ground one, it was submitted that it is not in dispute that there is an active matter before the High Court, with Cause No. 2019/HP/ 1237, commenced by the 11 Plaintiffs which includes the 1st, 5 th , 6 t h , 8 th and 9 th Appellants respectively and the 2 nd , 3 rd , 4 th and 7 th Appellants as defendants. 5.2 It was argued that, the Respondent under Cause No. JlO 2021 /HP/ 0504, claims to have been elected fallowing an interim injunction which allowed for Congress to be held j ointly. The said interim injunction was granted by Muma J , under Cause No. 20 19/HP/1237. 5 .3 That it follows therefore, that if the source of power and authority for th e Respondent and others to be elected at congress was the injunction granted by Muma, J , then th e Respond ent ought to have raised any issues that h ad arisen post congress before the same Judge as opposed to commencing a fresh action before a different Judge. 5.4 It was argued that the bone of contention in both matters was essentially about the leadership of UNIP and if allowed to proceed separately, there will be a serious potential for conflicting Judgments. In that regard, the cases of Mayawa Liuwa v The Attorney General2 and Nkana Alloy Smelting Company Limited v The Attorney General3 were cited. 5.5 In support of ground two, the Appellants reiterated their arguments in ground one and submitted that since the Jl 1 earlier proceedings are still active, the Respondent ought to have applied to be joined to those proceedings. 5.6 In support of ground three, it was submitted that, because the earlier proceedings are still active and trial has not commenced, the Respondent still has the opportunity to raise its issues in the said proceedings. In support thereof, the case of Societe Nationale Des Chemis De Pur Du Congo (SNCC) v Joseph Nonde Kakonde and Borniface Lubanza v Arnold Pauwels4 was cited. 6.0 ARGUMENTS OPPOSING THE APPEAL 6:1 The Respondent did not file any arguments in response to the appeal and only sought to do so at the hearing of the appeal. However, we were not satisfied with the reasons proffered for the delay in filing the response and we proceeded to dismiss the application. Consequently, the Respondent was precluded from participating in the proceedings. 7.0 ANALYSIS AND DECISION OF THE COURT Jl2 7.1 We have considered the evidence on record, the arguments advanced by Counsel for the 1st, 51h, 6th, 8th and 9 th Appellants and the Judgment of the lower court. 7.2 In our view, the issue to be considered is whether or not the action bearing Cause No. 2021/HP/0504, which is the present action, amounts to multiplicity of actions and abuse of court process. 7.3 The gist of the Appellant's argument is that the subject matter and the reliefs sought in the earlier proceedings and the current action are substantially the same. That therefore, the proceedings in the court below amount to a duplicity and abuse of court process. On the other hand, the Respondent argues that there is no multiplicity of actions as the two causes of action are distinct and separate as they do not arise from the same set of facts. 7.4 There is a plethora of authorities that state the law with regards to multiplicity of actions and abuse of court process. In the case of Development Bank of Zambia and Another v Sunvest Limited and Another5 it was stated as follows: J13 "We listened to the arguments in this appeal; and would like to immediately affirm the Judge on his disapproval of the action taken in this matter whereby one action is pending and some other steps are being pursued. We also disapprove of parties commencing a multiplicity of procedures and proceedings and indeed 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 commencing a fresh action when there is already another one pending in the Court with the result that various Courts may end up making various conflicting and contradictory decisions because the parties have started another action in the Courts". J14 7.5 Further in the case of BP Zambia Pie v Inter land Motors Limited 1 it was held as follows: "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 over the same matter before various courts. The administration of justice would be brought into disrepute if a party managed to get conflicting decisions which undermined each other from two or more different judges over the same subject matter." 7.6 What comes out clearly from the above authorities is that the law strongly disfavours multiplicity of actions not only because of the inconsistent outcomes that could result but also because of the public policy to promote judicial efficiency and to avoid clogging up the wheels of justice which will in the process free up resources that would be available to other matters and also lessen the backlog of cases that the courts have to deal with. 7. 7 With the foregoing in mind and upon a conjoint reading JlS of the court processes and the claims being sought under Cause No. 2021/HP/0504 and Cause No. 2019/HP/1237, which are set out in paragraphs 2.1 and 2.2 respectively, we are of the view that the parties in the earlier proceedings and in the current action are not the same. We say so, because the Plaintiff under Cause No. 2021/HP/0504 is not a party to the proceedings under Cause 2019 /HP/ 1237 and neither is the 1st Plaintiff under Cause 2019/HP / 1237 a party to the proceedings under Cause 2021/HP/0504. Furthermore, the 7 th , 9 th and 10th Defendants in the present action are equally not parties to the earlier proceedings and some of the Plaintiffs in the earlier matter appear as Defendants in the present action. It is, therefore, safe to say that the parties are not exactly the same. 7.8 As regards the subject matter, it is common cause that both causes of action are dealing with UNIP and its leadership. However, the dispute under Cause 2019/HP/1237, relates to the holding of congress by the outgoing central members and the interim central Jl6 members. It also relates to the rendering of accounts for the Party's assets both in and outside Zambia while the current action is post the Party's elective Congress held on 2 nd to 4 th April 2021, and relates to the Appellants' interference with the Party's administration and management by the new members of the central committee. This goes to show that the subject matter is distinct as it arose from two different transactions. 7.9 However, it would appear that claims I and 2 under cause No. 2019/HP/1237 have since been overtaken by events with congress having been held from 2 nd to 4 th April 2021, ushering in a new central committee. It follows therefore that the only issues to be considered under Cause No. 2019 /HP/ 1237 relate to the issue of rendering an account of the Party's assets both inside and outside Zambia, which in our view can still be heard separately. 7. 10 Based on the foregoing, the two causes of action should be decided separately as the two disputes arise from two different transactions. The determination of the two matters will unlikely result in two conflicting decisions. J17 We do hereby Order that the matter be sent back to the High Court before the same Judge for the Appellants to file their defence and for the Judge to issue order for directions. 8.0 CONCLUSION 8.1 In sum, the appeal is unmeritorious and is accordingly dismissed. Costs to the Respondent to be paid forthwith and to be borne by the 1st, 5 th , 6 th , 8 th and 9 th Appellants. Same are to be taxed in default of agreement. J. CHASHI COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE A. N. PATEL COURT OF APPEAL JUDGE I