Margaret Kakungu Lombe Mwila and Ors v Charity Mwila (Appeal No. 169 of 2018) [2019] ZMCA 329 (26 August 2019)

• IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 169 of 2018 IN THE MATTER OF: IN THE MATTER OF: AND IN THE MATTER OF: THE ESTATE OF THE LATE BENJAMIN YORAM MWILA AN APPLICATION UNDER SECTION 19 (C) (1) AND 19 (C) OF THE INTESTATE SUCCESSION ACT CAP 59 AN APPLICATION FOR AN ORDER THAT THE APPLICANT IS THE SURVIVING SPOUSE OF THE LATE BENJAMIN YORAM MWILA IN TERMS OF SECTION 3 OF THE INTESATE SUCCESSION ACT CAP 59 BETWEEN: ~ MARGARET KAKUNGU LOM{ BENJAMIN YORAM MWILA ~! J ABRAHAM CHITENDA MWIL KATAYI MWILA AND CHARITY MWILA ·'\ 1 ST APPELLANT I L'A · 1.. 2 ') 2 N° APPELLANT o A. UG 20/g 3JID APPELLANT ~ TH APPELLANT !~7: ,. / I ESPONDENT CORAM: Kondolo, Makungu and Lengalenga, JJA On the 23r d day of January, 2019 and 26t h day of August, 2019 For the Appe llants: For the Respondent: Mr. M. Muchende of M. Ass ociates Mr. S. Twumasi of Kitwe Chambe rs JUDGMENT MAKUNGU JA, d elivered the Judgm ent of th e court. " Cases referred to: 1. New Zealand Insurance Co. Limited v. Stone and others (1963) (3) SA 63 (C) 2. Merrit v. Imasco Enterprises Inc. (1992) BCJ 160 BCSC 3. Peel Financial Holdings Limited v. Weste rn Delata Lands Partnerships (6) 2003 BCSC 784 4. Kelvin Hang'andu and Co. (a firm) v. Web by Mulubisha (2008) Vol. 2 ZR 82 5. Mukumbuta Mukumbuta & Others v. Nkwilimba Choobana & Others (2003) ZR55 6. Payne v. British Time Record Co. (1921) 2 KB 1 7. Development Bank of Zambia & KPMG Peat Marwick v. Sunvest Limited & Sun Pharmaceuticals Limited (1995 - 1997) ZR 187 8. B. P. Zambia Plc v. Interland Motors Limited (2001) ZR 37 9. Chick Masters Limited & Another v. Investment Bank PLC Appeal No. 74 of 2014. 10. Swain-Mason and Others v. Mills and Reeves (a firm) 2011 EWCA CIVI 14 11. Wilson Masauso Zulu v. Avondale Housing Project (1982) ZR 172 Legislation Referred to 1. The Court of Appeal Rules, 2016 2. Rules of the Supreme Court, 1999 Edition 3 . Intestate Succession Act Chapter 59 of the Laws of Zambia 4. Wills and Administration of Testate Estates Act Chapter 60 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 This is an appeal against the ruling of the High Court dated 5 th December 2017 delivered by Ms. Justice Maka - Phiri in Cause No. 2015/HK/893. The learned Judge dismissed the appellant's application to -J2- consolidate Cause No. 2017 /HP/200 with Cause No. 2015/HK/893, which was presided over by Mrs. Justice Majula Mung'omba as she then was. 1.2 In this appeal, we deal with the Court's discretion to consolidate actions. 2 .0 BACKGROUND 2.1 In this part of the Judgement, we shall refer to the appellants as the 1st, 2 nd , 3rd and 4 th respondents respectively, and the respondent as the applicant as these were their designations in the court below. 2.2 By way of Originating Summons dated 10th December 2015, made pursuant to Order 30 Rule 11 (B) of the High Court Rules Cap 27, the Applicant claimed the following reliefs: 1) An order that the applicant is a spouse as defined in the Intestate Succession Act Cap 59 (hereinafter referred to as the Act) ; 2) An order that in terms of section 19 (c) (i) and (ii) of the Act, the respondents give and produce on oath a full inventory of the estate of the deceased; -J3- 3) And that they further render an account of the administration of the estate; and if so 4) An order that the estate be distributed to her as it m ay be; and 5) Costs be in the cause. 2.3 On 19th February 2017, the respondents issued summons for consolidation of Cause No . 2015/HK/893 and Cause No. 2017 /HP /200 pursuant to Order 4 Rule 9 of the Rules of the Supreme Court, 1999 Edition. The r e spondents also sought an order that the matter be transferred to Lusaka upon consolidation. 2.4 In their affidavit in support of the application , the respondents d eposed that in their cap acity as administrators of the estate of the late Benjamin Yoram Mwila senior (herein after referred to as the d eceased) , they h a d issu ed an Originating Summons for probate of th e "Privileged Will" of the d eceased in t h e Probate Registry of the High Court in Lusaka, cause number 2 017 / HP /200. They stated that they verily believed that th e outcome of Cause No. 2 017 / HP/ 2 00 would h ave a bearing on the issues raised by the a pplicant in Cause No. 20 15/HK/893. -J4- Therefore, the two cases ought to be addressed simultaneously to obviate a multiplicity of actions or conflicting judgments. 2.5 According to the same affidavit, the respondents were unable to make the application for probate of the "Privileged Will" before Judge Maka - Phiri because the applicant's case is based on the provisions of the Intestate Succession Act, Cap 59 whilst th e Lusaka matter was commenced pursuant to the provisions of the Wills and Administration of Testate Estates Act Cap 60 as read with Order 30 Rules 12 and 13 of the High Court Rules Cap 27. 2.6 The respondents further stated that the two matters should be consolidated for a one-off determination of all the issues surrounding the estate of the deceased. In the alternative, they averred that delivery of the judgment 1n Cause No. 2015/HK/893 be stayed pending the determination of Cause No. 2017 /HP/200 . 2.7 The applicant filed an affidavit in opposition in which she stated that the matter for which the respondents had issued Originating Summons in Lusaka could have properly been -JS- raised in the matter at Kitwe, which was commenced about two years earlier. 2.8 The applicant averred that she intended to have the matter in Lusaka dismissed for abuse of Court process and duplicity and that she had filed a conditional memorandum of appearance but was unable to make the application sooner due to the delay occasioned by the Registrar who only signed the conditional memorandum of appearance on 7 th March 201 7. She had since made the application for dismissal of the action in Lusaka. 2.9 In the affidavit in reply deposed by the 2 nd respondent, it was averred that the applicant had not shown that she would suffer prejudice should the two cases be consolidated as she was party to the application for probate of the will. That the reason why probate was applied for in Lusaka was that the deceased was domiciled there prior to his death and was subsequently buried there. Lusaka is also a convenient m eeting point for the respondents at the last known address for the deceased. -J6- 2. 10 The application to dismiss the Lusaka matter for abuse of court process was subsequently heard and determined on 25th October 2017. Judge Majula Mung'omba held that the action amounted to a multiplicity of actions and proceeded to dismiss the action with costs. However, the respondents have since appealed against that judgment. 2 . 11 The learned Judge Maka - Phiri considered the affidavit evidence before her and the submissions by Counsel. She fou nd that the two actions are: "diametrically opposite of each other though emanating from the same estate of the deceased." She opined that the evidence required in each cause would not be the same. She pointed out that trial in Cause No. 2015/HK/893 had been concluded but judgment had not yet been delivered. That even if the parties are the same in any given cases and the rights and reliefs claimed in both cases arise out of the same transaction or series of transactions, it did not follow that a consolidation order should be granted. In her opinion, there are situations where a case may appear to be what is termed "a square peg in a round hole" which resists the application to join the two or more matters together. -J7- 2.12 Relying on the case of New Zealand Insurance Co. Limited v . Stone and others, 111 she held that the power to order consolidation is discretionary and would not be exercised if a party could show a real possibility of prejudice. 2 . 13 The learned Judge further considered the cases of Merrit v . Imasco Enterprises Inc.121 and Peel Financial Holdings Limited v. Western Delata Lands Partnerships 131 on the criteria to be adopted when consolidating matters. She came to the conclusion that the convenience occasioned by consolidating Causes Numbers 2017 /HP/200 and 2015/HK/893 was far outweighed by prejudice or potential prejudice, or inconvenience which the applicant may suffer if such consolidation were ordered as the matter before her had reach ed judgment stage. She pointed out that to consolidate the matters would result in the applicant attending a fre sh trial and incurring further expenses. 2.14 Consequently, she found no merit in the application and dismissed it with costs to the applicant. -JS- .. f.. 2.15 From this point onwards, the parties shall be referred to as they appear in this appeal. 2.16 This appeal was heard consecutively with appeal number 001/2018 involving the same parties. 3.0 GROUNDS OF APPEAL 3.1 Being aggrieved, the Appellants seek to overturn the Ruling of the court below on five grounds as follows: 1. The court below erred in fact and in law to decline the application for consolidation by ignoring the common thread in both Cause No. 2015/HK/893 and Cause No. 2017 /HP /200 being the estate of the deceased and therefore, it was desirable to consolidate all actions pertaining to the same subject matter to obviate conflicting decisions which undermined each other over the same subject matter; 2. The learned Judge erred in law and in fact by relying on the case of New Zealand Insurance Co. Limited v. Stone and Others 111 to justify her dismissal of the application for consolidation when that case supports a verdict of -J9- consolidation since the subject matter 1n both proceedings concerns the same estate of the deceased; 3. The learned Judge erred when she ignored a plethora of Zambian authorities like the case of Kelvin Hang'andu and Co. (a firm) v. Wehby Mulubisha l4l which require that once a matter is before court and process is properly before that court should be the sole court to adjudicate all issues involved to obviate abuse of process and conflicting judgments; 4. The learned Judge fell into grave error when she held that the convenience occasioned by consolidation of the two causes is outweighed by the potential prejudice or inconvenience of the respondent when the result would be the complete opposite as the failure to consolidate would mean the respondent scampering between the Lusaka High Court and the Kitwe High Court for hearing on the same subject matter of the estate of the deceased; and 5. The learned Judge further misdirected herself and fell into grave error when she did not follow the Supreme Court decision in Mukumbuta Mukumbuta & Others v. Nkwilimba Choobana & Others l5l as required by the -Jl0- •. doctrine of stare decisis in so far as the said judgment states at page 6 and 7 that "Avoidance of multiplicity of actions is the more reason for ordering consolidation." 4.0 ARGUMENTS BY COUNSEL BEFORE THIS COURT 4.1 Learned counsel for the appellant Mr. Muchende relied on the appellant's heads of argument filed on 9 th November, 2018 wherein all the five grounds were argued together as follows: The court below gave undue weight to the issue of convenience or inconvenience as the fundamental principle for consideration when determining an application for consolidation. 4.2 Mr. Muchende relied on the cases of Mukumbuta Mukumbuta & Others v. Nkwilimba Lubinda & Others, 151 and Payne v. British Time Record Company 161 in submitting that the mam purpose of ordering consolidation of causes is to obviate a multiplicity of actions and the possibility of two or more courts rendering conflicting judgments which may undermine each other with regard to the same subject matter. Therefore, the issue of convenience or inconvenience of -Jll- • the parties and the court 1s not the pnmary consideration. 4.3 The case of Kelvin Hang'andu and Co. (a firm) v. Wehby Mulubisha l4 J was called in aid where it was guided that: "Once a matter is before court in whatever place, tf that process is properly before it, that should be the sole court to adjudicate all issues involved; all interested parties have an obligation to bring all issues in that matter before that particular court. Forum shopping is abuse of process which is unacceptable." 4.4 The appellants' counsel criticized the opinion of the court below that the interests of the parties in the two actions were "diametrically opposed" saying that it supports the contention that the originating process for probate of the "privileged will" of the deceased was not an abuse of process. It was argued that a perusal of the claims 1n each of the causes will show that there was no way of filing a counterclaim to the action in Kitwe as it was -Jl2- • predicated on a different set of laws and was not issued in the Probate Registry. 4.5 Counsel stated that there was a possibility of the Kitwe High Court holding that the estate be distributed in terms of the Intestate Succession Act whilst the High Court at Lusaka may hold that it be distributed in accordance with the "privileged will" under the Wills and Administration of Testate Estates Act. And this supports consolidation of the two actions. 4.6 We were called upon to take note of the fact that already, the two courts have clashed on the issue of whether there is an abuse of process. Judge Mung'omba in her ruling dated 25th October, 2017 under Cause No. 2017 /HP/200 held that the action of the appellants was an abuse of court process while Judge Maka-Phiri held that; The difficulties in the way of consolidation of the two actions lay in the interests of the parties being diametrically opposed. -J13- 4. 7 In response, counsel for the respondent Mr. Twumasi began by arguing that what the appellants refer to as "Letters of Probate" or "Probate" is in fact "Letters of Administration." 4.8 Counsel then proceeded to review the authorities on consolidation of actions, namely: Kelvin Hang'andu; 141 Development Bank of Zambia & KPMG Peat Marwick v. Sunvest Limited & Sun Pharmaceuticals Limited; 171 B. P. Zambia Pie v. Interland Motors Limited 181 and Chick Masters Limited & Another v Investment Bank PLC. 191 4.9 Flowing from the above, he argued that apart from the test of balance of convenience in consolidation of actions, the court has to consider whether or not the matter is properly before it. Therefore, he submitted that an action which is an abuse of court process cannot be considered to be properly before the court. When the appellants' commenced the action in the Lusaka High Court, it was a matter for all intents and purposes an abuse of court process, and therefore, not properly before the court. -J14- ' ' • 4.10 The following reasons were advanced in support of the above proposition: That the appellants' knew of the existence of Cause No. 2015/HK/893 and the issues which had been raised therein including the "Privileged Will"; And that the matter in the Kitwe High Court had only been reserved for judgment and not concluded; further that the application in the Lusaka High Court and the application for consolidation in the Kitwe High Court would delay the case. 4 .11 Counsel referred us to Order 4 Rule 9 ( 1) of the Rules of the Supreme Court, 1999 Edition and submitted that there was no common question of law or fact that arose 1n both actions to make it desirable for consolidation. He submitted that the rights to relief claimed in the two causes did not arise from the same transaction and it was not desirable to make an order for consolidation. Therefore, the court below was on firm ground to find that the interests of the parties were diametrically opposite of each other, although emanating from the same estate of the deceased. It was argued that -J15- the court below correctly applied the Mukumbuta 151 case and the Kelvin Hang'andu 141 case. 4.12 . When the appeal was heard, both counsel relied on their heads of argument which they augmented with oral submissions. 4.13 Mr. Muchende, argued orally that the application before the lower court was suitable for consolidation because the two causes relate to the same estate notwithstanding that they are diametrically opposite. Counsel submitted that Order 4 Rule 9 (1) (c) of the Rules of the Supreme Court, 1999 provides for a situation where the court sees it desirable to make an order for consolidation. He thus took the view that it would have been inconvenient for the respondent to be travelling between Kitwe and Lusaka each time either of the actions was being heard. Therefore, it was desirable to consolidate the actions. 4.14 Counsel further argued that nowhere in its ruling did the court below state that the application for consolidation was an abuse of the court process. -J16- • 4.15 In reply, Mr. Twumasi, submitted orally that the issue of the "Privileged Will" was canvassed in the earlier action. The court was therefore expected to make a final determination of the question whether or not the deceased died intestate or testate. Therefore, the commencement of the action for probate was unnecessary. In his view, all that the Appellants needed to do if they wished, was to apply to submit further documentation so that the court in one place determines the matter. 4.16 Mr. Twumasi took issue with the appellant's application that the earlier case be moved to Lusaka because it is the latter case which the court was called upon to consider joining to the earlier one. 4. 17 With reference to the Mukumbuta 151 case, counsel wondered whether every matter which is a duplicity can be cured by consolidation. He further wondered whether the Mukumbuta Case was elucidating that by purposely commencing another action elsewhere, the court would cure the defect by consolidating matters. He submitted that a party who goes about raising a number of cases knowing very well that there -Jl 7- 1s a case already before the court, should not apply to consolidate that matter with the former one because the latter would be improperly before court, Kelvin Hang'andu 141 case refers. 5.0 DECISION OF THIS COURT 5.1 We have considered the record of appeal and the oral and written arguments made by both advocates. A consideration of the five grounds of appeal shows that they are all basically challenging the decision of the court below in refusing the application for consolidation. Therefore, we shall deal with all the five grounds collectively. 5.2 A court may order consolidation of matters under Order 3 Rule 5 of the High Court Rules, Cap 27 which provides: "1. Causes or matters pending in the Court may, by order of the Court or a Judge, be consolidated, and the Court or a Judge shall give any directions that may be necessary as to the conduct of the consolidated actions." Order 4 Rule 9 of the Rules of the Supreme Court, 1999 equally bestows upon the court the jurisdiction to order -Jl8- consolidation of matters but goes further to state the conditions under which it can be done as follows: 4/9/1 Where two or more causes or matters are pending in the same Division and it appears to the Court - (a) that some common question of law or fact arises in both or all of them, or (b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or (c) that for some other reason it is desirable to make an order under this paragraph, The Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them. The above provisions are very clear and require no interpretation. 5.3 In our jurisdiction, the Supreme Court has laid down what a court ought to take into account when determining an order for consolidation of maters. In the case of Mukumbuta -J19- Mukumbuta & Others v. Nkwilimba Choobana & Others 15 > the Supreme Court guided that: "1. The principle governing consolidation of actions is that common questions of law or facts and rights or relief arising out of the same transaction should be consolidated in one action. 2. The rationale for consolidation is to save costs and avoid multiplicity of actions." 5.4 Cause No. 2015/HK/893 is a claim brought under the provisions of the Intestate Succession Act in which the respondent seeks a declaration that she is the widow of the deceased. She further seeks orders for distribution of the estate in accordance with the (Intestate Succession) law, and the rendering of an account of the administration of the estate by the appellants. On the other hand, Cause No. 2017 /HP/200 was brought under the provisions of the Wills and Administration of Testate Estates Act pursuant to which the Appellants seek to prove a document believed to be the "Privileged Will" of the deceased. -J20- 5.5 The common threads in both causes are that the parties are the same, and the issues relate to the estate of the deceased. The difference is that the question of issuance of the letters of administration with "will annexed" or probate was not raised in the earlier action but the latter. 5.6 In its judgment in the Mukumbuta case, the Supreme Court stated as follows: "We agree that avoidance of multiplicity of actions is the more reason for ordering consolidation. In the instant case, it was however more of a case of duplication of actions than multiplicity of actions. But because there was also the element of multiplicity in that there were the same parties, common questions of law and facts and rights to relief arising out of same transactions, the interests of justice, in our view demand that Cause No. 1999/HP/1807 be consolidated to the earlier Cause No. 1999/HT/16 at Mongu as all parties seem to be resident at Mongu .... " 5.7 We accept the lower court's findings and holdings. It is not mandatory but discretionary to make orders for consolidation of actions even if the actions arise from the same transaction or series of transactions and the parties are the same. If there -J21- is a possibility of a party suffering prejudice, the actions may not be consolidated. Since the case had reached judgment stage, the applicant (respondent herein) would have suffered inconvenience and prejudice if the actions were consolidated. The Judge directed herself properly and aptly applied the principles of law laid down in the cases of Merrit v. Imasco Enterprises Inc 121 and Peel Financial Holdings Limited v. Western Delta Lands Partnerships.131 She judiciously exercised her discretion not to consolidate the matter and cannot be faulted for that. We are inclined to follow the matter of Swain-Mason and Others v. Mills and Reeves (a firm) 1101 where the Court recognized the reluctance with which an appellate Court would interfere with discretionary case management decisions, especially those of a trial Judge. 5.8 However, upon dismissing the application, she should have considered the effect that the decision in the probate case would have on the case before her and taken the appropriate measure of staying the proceedings before her pending the outcome of the probate action. That would enable her abide by the guidance of the Supreme Court in the case of Wilson -J22- Masauso Zulu v. Avondale Housing Project <111 where it was held that: "The trial court has a duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality." 6 CONCLUSION 6. lAll in all, this appeal fails. The proceedings before Judge Maka Phiri are stayed pending the outcome of the probate action. Since the appellants delayed the matter by commencing a fresh action late and making an application for consolidation which has failed, we order that the appellants shall bear the costs in the court below and in this court, which should be agreed between the parties or taxed. .. .-.~ ...... ~---······· ==- M. M. KONDOLO COURT OF APPEAL JUDGE ....... ~ ........ . C. K. MAKUNGU ..... l ..... :. ~ ... F. M. LENGALENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J23-