Ronbeat Investments Limited v MTN Zambia Limited and Ors (2013/.HP/1468) [2021] ZMHC 96 (25 February 2021)

IN THE HIGH COURT li'OR ZAlVCBIA AT TBJ•,j PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Ciuif Jurisdiction) BETWEEN: AND 1\.-ITN (ZAMBIA LI. IVIITEDJ NDOLA CITY COUNCIL HIS ZAMBIA Lil\rIITED 2013/. HP/1468 PLAINTIFF 1rit DEli"ENDANT 2 nd DEFENDANT INTERESTED PARTY BEFORE: HON. MR. JUSTICE E. L. MUSONA. For th~ Pbintiff: F,-,r the l';, Defendants: for th e 2nd Defendant: For 1:h,~ interested party: Mr. J. Zimba of :rvJcssrs Makebi, Zulu Adv. Mr. 11,,1. ,J. C hitupila \Vith Ms. v. N. Sholandc of Messrs hill and Seph Adv. Ms. M. Diming1.1 Phiri in house coun s el for th<:.· . 2ndl)cf,.!nclant Ms. D. Nali$huwa o f C\-kssrs Musa Duclh1a ano C'.o . JUDG.l\llENT - - · · - · · -·······--... - - - - " ..... "' •• '''''1'' ...._.__ ...... ._._,,, .. DA1'E: 25TH Jt"'EBRUARY, 2021 J1 • Cases referred to: 1. Wilson Masauso Zulu " Avondale Housing Project Ltd (1982) ZR 172 . Z. G-alaun.ia Farms Ltd v National Milling Corpo,·ation Ltd (2004) ZR 3. Khalid Moha1ned v Attorney General (1982} ZR 49 4. Shell and BP Za,nbia Ltd v Conidaris and others (1975) ZR 174 Legislation referred to: .1. 5 .33 of the lands and deeds registry Act Cap 185 of the laws of the Republic of Zambia. Othet works re {erred to: Winfi.e ld and Jolowiz on torts cases and 1l>1aterials. 1. Cheshire and Fifoot's 2. law of contract, 10th edition, London Butterworths, 1981. Chitty on con rac ' t ts Genel'al Principles Volume 1, Sweet 3. and Maxwell, 2008. J2 The plaintiff con1rnenced rbis acti(Jn on 7 th October, 20 .1 ;1 against M . T. N Zainbia Li1nited by writ of surnmons with an accompanying staten1ent of dairn. On 8tb AuhY\.lst, 2014 Ndola city council joined these proceedings as the second Defendant. And on 14th Novernber, 2019, I-HS Zambia Li1nited was added as an interested party. The plaintiffs c1airns as against both Defendants is for t.he foli_ov.ring reliefs: 1. Da1nages for trespass including aggravated damages. 11. Mesne profits for the use by the Defendant of the signal to\ver erected on the plaintiff's land. 111. An injunction restraining the Defendants whether by themselves or by their servants or agents from entering: using or erecting a.ny further signal towers upon the plaintiffs iand with or without motor v,'!hicle. Interest on J. and 2 above at the current lnmk lending rate frorn the date of the writ. to the date of full settlement. Any other relief the court n1ay deem fit. JV. \ . . . "'·"··11 costs hereof and incidental to the proceedings. I t . I ... 5G Vl. J3 • As shc)\\711 above, this 1natter was con1n1enccd at the princip~ registry at Lusaka on 7th October, 2013. . JudgeIT1ent is being delivered today the 25 th of February, 2021. Undoubtedly, this is an e pitome of delay. By sirnple calcu.lation 1 this case has taken n1ore than seven (7) years. The case foll into backlog. The backlog \. Vas serious. It was finally allocated to n1e in AugL1st, 2018 under the auspices of the task force on backlog appointed by the Honorable Chief ,Justice. Frorn August, 2018 when this 1natter was allocated to me to today when this Judgement is being delivered, shows that I have had conduct of this n1atter for about two (2) years. 1 remind myself on the outset that in matters of this nature the standard of proof is on a balance of probabilities. Further, the duty to prove the case rests on the plaintiff. 1 have looked at a plethora of aut 1ont1es an c f w·1son Masanso Zulu v Avondale Housing o • . <l am well j,uided. I have looked at the cases o l Ltd v National Milling . . • · . F • arms d Project Lt Corporation Ltd (2} an (1), Galaun1a a i d Kh l"d Mohamed v The Attorney General (3) J4 In ajJ rhese authorities, it was seul.ed that n plaintiff has a duty to prove the case against the Defendant. \Vhat I garner, therefore, is that if the plaintiff fails to prove the case) then the plaintiff's case rn u.s t fa.il. In support of their case, the plaintiff called three (3) prosecution witnesses. I shall, hence forth~ refer to these witnesses as P\V 1 1 PW2 and PW:3 respectively. PWl was M/Ronald Bwale Nsokoshi, who is the plaintiff herc:.:in, the evidence for PW 1 was that between th,~ years 1999 and 2000 he applied to Ndola city council to purchase the s-;,vi1nming pool being then the property of Ndola city council situate on sub division 10 of · stand number 266 Kandabwe, Ndola. That application was successful and the plaintiff purchased that svvi1nrning pool between the years 2012 ,u1d 201:3. The problen1 is that there is a to\ver which until it was sold to IHS Zarnbia Lirnited belonged to MTN Zru.11 bia l.,imited. According to the plaintiff, this tower sits on sub division 10 of stand nurnber 266, Kandabwe Street, Ndola in the Republic of Zrunbia, the plot allegedly beionging to the plaintiff. u111!) 1: vv ,.., \,\ d. S • c~ · · ,, ~ M/J::>--•ul f-=>hiri who is a goverrnnent land surveyor. PVJ2 cante to court under a subpoena cluces tecurn. PW 2 told this court that the beaco11s on the disputed plot are intact and that, t ose h b · e1ng s property .,..c 011 e..-. - ,. cl•"fine the boundaries of the disputed _,..., , b d ub 1 0 o stan ·...,,b-,_~>, Ncl•)la, and ·\.vithin that ' ' · f JS boundary there is an MTN Zambia Telecomrnun:ications Mast. PV✓2 emphasized that the IvlTN Mast was within sub 10 of stand 266, Ndola. P\:V3 was MiFrancis I\.1usonda rvtw.ila who is an accounts officer for the plaintiff. The evidence for PW3 was that the first Defendant had encroached on sub division 10 of stand 226, Nclola which belongs to the plaintiff. That arising from this encroach1nent, the plaintiff has been unable '.- to i1nplen1ent their economic activities on the dispu.ted. plot. The defence called two (2 ) \x.,·itnesses one by the 1 ::.c Defenda...r1t and the other by the interested party. I shall refers to those defence witness as DVV 1 and D\V2 respectively. D\Vl was M/Tom Nguni who is a technologist for capital projects for the 1st Defendant. By the Defendant's witness staternent, D\V 1 avered that the relationship between the l st Defendant and the 2 1 ~d Defendant in this case arose from a lease agree1nent between the 1.,, vears frorn c.u J t ., that lease agreernen . - Deien.dan t stan c d e1en an . D t and the 2nd Defendant. The duration of the lease '\\:as 10 1s t JariU""'""', 2011 0 3 l 5t December, 2021. Pursu.ant to lef1sed frorn the 2i1d the 1 :;t Defendant d nurnber 266 Kanclabwe .• Ndola, for the purpose of al t b . opei·ate· d on a nati.on . . 1 . f' z b' a That 1s the towe1 . n . . , .· which WHS o e - .: · - . . . ' hout the Repubhc o am i.:. . . . 1 :. . f the prernises, tbe 1 r. L Defendant pa1c to setting up a base station . . \mde basis throug . . co11siderat1on of the L1se o j6 the ~~nd Defendant a n1onthl.y rental of K.l, 500 (reba.sed) . According to D\V l, the premises in issue being stm1d nurnber 266 Kandabv,:e, Ndola is property of the 2nc1 Defendant. DW 1 further avercd that the 2 nd Defenda.nt never notified the 1st Defendartt that there has been a change of ownership or transfer of interest in the propert.y to a.ny other pcu-ty. DW 1 further a.vered that the:: 151 Defendant sold the tower on the disputed land to the interested party herein in Dece1nber, 20 J. 4, subsequent to \Vhich the lease agreement between the 1s t Defendant and the 2 nd Defendant co1ne to an end. The interesced party also gave evidence through their witness. I shall refer to the \Vitness called by the interested party as DW2. D\V2 was M/Bernard Kaputo l:'v1ul.enga a senior site acquisitions coordinator for the interested party. DVv-2 avered throu gh his witness staternent that in around 2014 the interested party and the 1~a Defendant entered into a.11. agreen1ent \.d1ereby the inter ested party purchased the 1st Defendant's Base ·l.t ,.d on stand num.ber Transceiver (BTS) c01nrnonly callee; t. O\Vt1 oc,. e ... , l . 266 Kandabwe. Ndola as pGu t o d h pure ase h erein -d . 1nterestc p r,1·ty' c•. , . f the transaction wherein the the 1st Defendant's . Z telecornn11.unca . · ""tion towe rs 111 . Ja.m .>1c: · . . . , ~e that he intere sted part) c that pui chc.\S . · c' ' )· ·a It W3. S a tenn of agree1nent 1n , -ou1d acquire everythi.ng . ~ t between the l sr . 1 " toW<"r 1 nc o ~ · . lttd1·111:i tl1e lease agret.. Tncn. ~ attached. to t. .1e - 1 ·• .· a the purchase of the tower . ·, , ntl Defendant. Before com.p t t.lno . . . ' "' · . . " fa tions as part of 1ts due d partv conducted in,,es ioa. and the 2 . the 1ntereste . <- · • J7 diligence to ascert.uin the ov,rnership of the land on which the tower stood. The 2 nd Defendant confirrned to the interested party tbat truly the 2 nd Defendant \:Vas the owner of the portion of the land on which the tower stood. 0 :n ,_tl·,!g_se ba~is, on 22nd December, 2014, the interested party executed a lease agree1nent with the 2nd Defondant. Prior to the acquisition of the tower by the interested party, the 1 nt Defendant ha.d a lease agreement over the land on which the tower is sited with the 2 nd Defendant. As part of tJ1e acquisition of the tower, the interested party took over the kase and to this extent entered into a lease agreement with the :2nd Defendant. That lease agreernent was exhibited on page's 23 to 35 of the interested party's bundle of documents. The n1onthl.v rentals in the sun1 of ZM\:V 1, 800 were to be paid b y t h e int:erestecl party to the 2 1~d Defendant and have ever since that agreernent h a d been paid to the 2 nd Defendant. According to the interested party, the land on which the tower is s ited belongs to the 2 nd Defendant and this is \:vhat the 1st Defendant and the 2 nd De fendant have alwa:ys represented to the interested party. Additionally, the interested party avered that the portion on which the tower stands is not party of the plaintiffs property. 1 have heard all parties. I shall now consider the reliefs sought. JS 1. Damages for trespass including aggravated damages A1n alive to the k-1\1>7 on trespass to property. In siffrple tenns, trespass is m1 unla-,vful entry on the land that belongs to another person . According to Winfield and Jolowiz_a trespasser js "one who enters or remains upon land in the possession of an.other without privilege to do so". In order for a plaintiff to prove that the other is a trespasser, the burden of sucb proof lies upon the plaintiff. The plaintiff 1nust, therefore, prove that; 1. The plaintiff is the actual owner of the property or 1n possession thereof. 11. The entry by the other ·was intentional and unlawful. Regarding the O\Vnership of stand nun1ber 266 Kandabwe, Avenue, Ndola which is in dispute_, I note that the p]aintiff applied for the purchase by thernselves. from the 2nd Defendant of sub division number 10 of stand number 266 Kandab\ve Avenue, Ndola. That applkation was approved and the payrnent by pla.intiff to the 2 nd Defendant for the purchase of sub division 10 of stand nun1.ber J66, Kanclabwe A.venue , Ndola is not in dispute. Subsequently, 011 13th Septernber, 20 11 a certificat<:· of title was issued to the plaintiff. J9 I atn a live to the provisions of S.33 of the lands and deeds registry Act Cap 185 of the laws of the Republic of Zambia that section provides that: "A certificate of title shall be conclusive as from the date of its issue and upon. and . after the issue thereot''. There is no dispute concerning the ownership of this sub division number JO of stand number 266 sii:'uate in Ndola on Kandahwe Avenue. The only dispute is that the t0\\7er is sited on the above said property. The plaintiff alledges that the to\ver is on their property. To the contnu-y, the :?.nd Defendant, in their defence filed into court contend that the tower is on their prope1·ty and not on the property of the plaintiff. • In order to resolve this in1pase I travelled fron1 Lusaka to Ndola on 16th August, 2019 for a site visit . tvly observations at the site were as follo\vs; The property 1s popularly referred to as Ndola swirnn1ing pool. The property is in extent 1.54 12 hectors. • a. b. J10 c. The swhn1ning pool pa rt is in a concrete wall fence \:vhile the rest of this property is not in a wall fence. d . Tl-)e property has five {S) beacons labeled as A-13--C-D--E. e. It is 134.52 rneters fron1 beacon A to beacon B, 112.89 1niters frorn beacon B to beacon C. 140.47 1neters fro1n beacon C to beacon D, 100.54 rnetres from beacon D to beacon E and 8.81 1netres fron1 beacon E to beacon A. f. The property is situated at the corner of Kandabwe Avenue and Kanongesha Road . It is a sub division of the re1naining extent of stand nu1nber 266 Ndola a property of the 2 r,d Defendant. g. The Mast is on the side of beacon D, clearly inside sub division 10 of stand number 266 Kandabwe, Ndola, the property of the plaintiff. My above findings have been fortified by a survey report on the b~undary verification of sub 1 O s tand 266, Nclola that report which was prepare d b . Paul Pl·iiri who is a · Y · (; la11cl surveyor fron1 the . • ' ., ,..1•, C)ffi --e with its sketch plan and an accon1pany"'lng ( Survevor Jenerc1. s , . 2019 under the hand oi Jos1::pn . letter dated 1 sw Novern. e1 ' . · 11rve_\1or S - ~ .• c·•r.,·11•"'1·'"'1 all shc>\V that tbe tower n1 .1.:: Minar1go who is t e .:. ~- h .b • . . . • c,.; • Hi issue; indeed., foils wit.bin the boundaries of sub 10 st.and 266 Kandabwe, Ndola, the property of the plaintiff. \Vhat I discern frorn this is that the to\ver is truly on the property of the plaintiff. \1/ho then is the trespasser'? The plaintiff was offered to purchase the disputed property by Ndola Council in a. letter of offer dated 29th April, 2011. That letter of offer \-Vas exhibited on page 12 of the plaintiff's bundle of docun1ents. The plaintiff 1nade the first part pay1nent of Sixty Thousand Kwacha ZI\·1K 60, 000.00 (unrebased] on 17111 May, 2011 to\vards the purchase of the disputed property. A receipt of payntent of this rnoney was exhibited on page 11 [aj of the plaintiff's bundle of docun1ents . The plaintiff obtained title to the disputed property on 1. 3c1·, Septem.bcr, 2011 when the certificate of title nun1ber 130 844 in respect of this disputed property was issued in favour of the plaintiff. It can therefore, not be disputed that the plaintiff acquired interest in the disputed property on 17 111 M.ay, 20 11 when h e paid the initial payrnent towards the purchase of the disputed property although title was issued to hi1n on 131h September, 2011. \1/hen then , did t he tower start sit ting on that property? . A.ccorcling to the was erected during t.he h nlaintiff's staten1ent of claim, ~ e ower ,. duration of the lease bet ween the ) s t De enc an. Defendant. Clearly the plaintiff was a lcnsee at that tirne Hnd not t and the 2 nd . f t :l the owner. J12. Notwithstanding th.at the l.eas1:![ enjoys certain rights and privileges, the plaintiff was fortified when tbe plaintiff n1ade initial ·payrnent to the :2r;d Defendant for the purchase of the disputed property. That was on 17th ivlay, 2011.. As froi:n 171h . May, 2011, the plaintiff begun to enjoy ownership of the disputed land as opposed to n1ere usufractus rights. As from J.7tli May. 2011, therefore, the plaintiff acquired proprieta.ry rights in the disputed property. As frorn 17th May, 2011 the l 5 t Defendant \Vas obliged to pay rentals to the plaintiff and not to the 2 nd Defendant. There was need by the l st Defend,mt to transfer their allegiance to i:he plaintiff a nd r1:~ntals directed to the new owner of the disputed. property. F<-ulur1.:-- by the l :-t Defendant to regularize their stay on the disputed property \Vith the plaintiff rendered the 1s t Defendant trespasser. This was aggravated by non payment of rentals by the 1s t Defendant to the plaintiff. What also went wrong 1 too ·wrong infact, ,vas the conduct of the 2 11d Defendant who continued to receive rentals from the J 3c Defendm1t in respect of the property which they had since leased to and later sold to the plaintiff. On those basis. I find that the 1s t Defendant was a trespasser because they had no consent of the plaintiff to be on that property. The 2n.:1 Defendant exacerbated the situation when they kept receiving and pocketing rentals paid to then1 by the l 5 1 Defendant in respect of the property which they had already leased and later sold to ti1e pJaintiff that constitutf~d a trespass on the part of the 2nd Defendant. I also find that the 1 ,H Defendants who were the lessee under a lease agreen1ent between the 2 nd Defendant m1d tb.e Jst Defendant .liable in da:mages for trespass both on their own selves as well as under the inde1nnity cla.u.se which is cl-aus~<:~~n their lease agreernent between the 1st Defendant m1d the :2nd Defenda nt. Under that indernnity c lause the J.t.-1 Defendant js to indernnitv the 2 nd ' ... Defendant against any liability. It follo\vs, therefore, that the ls, Defendru1 t are liable on this clai1n. The liability accrued frorn the time when the t0\:\.1er was created on the plaintiff's property. [t is clear that vvhen the tovver was created the plaintiff \Vas not yet the owner of land but a lessee. The plaintiff subsequently beco1nes the O\.vner of the land when [hey bought it. The liability on thelst Defendant to the plaintiff is effective from the t.in1e the tower \Vas erected, because, although not as an owner of , the property that time, th e plaintiff as a tenant had usufratusr~ property. 'l11e plaintiff ,:vas in possession of the property and was paying rent to • the 2 nd DefendanL V✓hat the l s t Defendant did to erect a tower on \ that propc~·ty 1.va~ -~ -~~~~p~1.~s ~~ ih;-p~c:ti~;:tiff~ .~· ~9;~--~~f_-t;:~pass can also be comn1itted again~t. ~ leasee other than the actu~} !?~~TI~t 01_· _ land. A tort of trespat.:;s can also be co1n1nitted by the owner of land against the tenc111t. This case is an epito1ne o.f drcurnstances under J14 ·which leasee can s1.:i.sta.in a ciairn for trespass aga:inst the landlord and other trespas~ers. There is no dispute that at the nw.terial time the plaintiff was in possession of the disputed. land. Therefore at all rnaterial tin1es the plaintiff was in the possession of the disputed land. In the case of Shell and BP Zambia Ltd v Conidaris and others (4) the Supren1e Court held that; "Trespass to the land in the unlawful entry on land in the possession of another," The Defendants in this case knew that the plaintiff was in possession of that djsputed land. Their conduct was deliberate and intentionaJ. This is what 1nade it unlavviul. This clairn for drunages for trespass including aggravated cla1nages is upheld against the 1s t Defendant with interest at the short tern1 b ctnk deposit rate from the date the tower was erected on sub division 10 of stand 266, Ndola to elate of ,Judgen1ent and thereafter at the current Bank of Zainbia lending rate until full pay1T1ent. I refer it to the Registrar for assessn1ent. Mesne profits for the use by the Defendant of the signal tower erected on the plaintiff's land. . •t t\. al tlli"' sigrnl tower on the plaintiff's land ,vas erected It 1s tn e 11 · ·· •· · '· · ·1 or t 1e pur f . , , ' ., · ~ , ·rJos·e largr'lV of financial gain. It can, therefore, not be · d tl at the l 8t Defendant enjoyed financial gain yet at the ·rr who was l.egitin1ate1y en tilled to those · . dispute · •. expense of t.he p a1nll ]r · • J15 benefits. Having established that the tower was wrongly on sub division 10 of stand nun1ber 266, Ndola it follows , therefore , that the financial gain which accrued to the Defendant's be handed over to the plaintiff who is legitirnatel_y entitled to those rnonies. Consequently, I order tha.t all the rentals which the 2 nd Defendant received from the 1 ,,t Defendant be remitted to the plaintiff forth with. In default of agree1nent satne shall be assessed by the Registrar. This shall be paid ,;vitb interest at the short tern1 bank deposit rate from the date of the first pay1nent to date of Judgen1ent and therefore at the Bank of Zarnbia lending rate. Iii An injunction restraining the Defendants whether by themselves or by their servants or agents from entering, using or erecting any further signal towers upon the plaintiff's land with or without motor vehicle. This \. Vas an interlocuto1y application for an order of interhn injunction. The application ,vas delt with during proceedings. This claim, therefore, falls off. 1v Interest on 1 and 2 above at the current bank lending rate from the date of the writ to the date of full statement. The issue of interest on the first and second clain1s has already been delt with when 1 dealt v,ritb th.ot'if:: cla.iins. Any other belief the court may dee1n fit. V 1 have seen no other n~lief due to the plaintiff. Vi Legal costs hereof and incidental to the proceedings. J 1 order costs of and incidental to these proceedings in favour of the- plaintiff against the Defendants to be taxed in default of agreen1ent. For the avoidance of doubt, the plaintiff has succeeded on t--r..;vo (2) claim.s and those are claims 1. and 2. CJairn one i.s for darn.ages for trespass including aggravated da.1nages. Clain1 2 for !vfesne profits for the use by the 1st Defendant of the signal tower erected on the plaintiffs land. I have seen no liabi.lily on the party of the interested party. In fact, the interested party \Vere not privy to what \Vas happening but only found themselves entc:u1gled in the spiders' web innocently. The learned authors of Cheshire and Fifroot's law of contract, 10th edition, London Butterworts, 1981 stated that, "In the middle of the nineteenth century the common law judges reached a decisive conclusion upon the scope of contract. No one, they declared, may be entitled to or bound by the terms of a contract to which he is not an original party." ·1~,. 1 1· , Chitty on contracts , General Principles, I arn also ortl 1ec t Volume 1, Swee an J) f d Maxwell 2008 wherein, ' ' the learned authors \vrote that, J17 .~ ... rhe conunon law doctrine of privity n1eans, and means .t only that a person cannot acquire rights, or be subjected to liabilities, arising under a contract to which he i.s not a party". Indeed the interested party were not privity to this kerfuffle. However, that is not to suggest. that the interested party has the r ight to be on the plaintjff's property wit.bout t.he express consent of the plaintiff. The continued stay of che interested. party on the plaintiffs land 1s subject t.o mutual agreement on terrns to be agreed by the interested party and the pla.intiff. In default of agreen1ent the interested party shall vacate the plaintiff's land. Effective fron1 today :25t11 February 1 2021 up to the date -.vhen parties shall execute a lease the interested party shall pay rentals to the plaintiff at the 1nonchly rental of Ten Thousand Kwacha as was proposed by the plaintiff to the 1 ~r Defendant. The interested party shall pay to the plaintiff a 1nonthly rental of KlO, 000.00 up to date the interest.t:!cl party s.h.a.tl sign a lease if both parties are still interested in executing a lease provided that the negotiation between the interested party and the plaintiff shall not exceed 90 days frorn today. \,\/hen the negotiation co.llapse or.:.:!J.1-B-Y- \ exha~~1:_ 90 _ clays_,_,:_t,e interested- pa;.t);-;;hall vacate the premi~es J - together with their tower. ----- Ten Thousand Kwacha n1onthly rental is what the plaintiff had requested the 2nd Defendant to pay. This is according to the J18 ... evidence of the plaintiff adduced m court in this ca.se (Jn. 2 nd October, 2019. e Parties shall have the liberty to agree on what to put in their l e~ including the rentals payablt. It is of interest to note that the 2 nd Defendant failed to avail any witness. However, when the rnatter was adjourned for Judgernent and \vhile it was still pending Judge1nent, surnznons were received frorn the 2 nd Defendant for an application to call a witness. A date was given for the h earing of that a.pplic::-nion. However, on the hearing of that application the 2 n d Defendant did not attend. Only the plaintiff, the 1~1 Defendant and the interested party \Vere in attendance. So, the hearing of t h a t application could not be held on accmmt of the non a tten dance of the 2;;rJ Defendant who \Vere in fact. the applicants. This demo n strates that the 2 n d Defendant had opportunity to call witnes ses but failed to do so. First, it was during trial of the matter when the 2 r;d Defendant failed to avail any witness until the 1natter ·was acijourned for Judge1nen t. The second opportunity ·which the 211<1 Defendant had was when the he::U"ing of n1atter had closed and \Vas av.:aiting Judgement when the 2nc1 Defendant filed sunnnons to arrest Judgement so that they could be he~u·d on their application to call a w1tne::.s. · , . o n tll ~ d ·:tle for the hearinir of this application, the c: , nd Defendants who were the applicants did not attend court, yet the other parties did· J19 1 then proceeded to deliver ,Judgc:ment as scheduled. Leave to appeal is granted. In view of the Covid 19 phobia and attendant heaJth guidelines, C -this Judgernent shall not be delivered to the parties but parties shall proceed to uplift the . Juclgcn1crrt. DATED AT LUSAI<A THIS THE 25th DAY OF FE:BRUARY, 2021 HON. MR JUSTICE E. L. MUSONA HIGH COURT JUDGE J20