Mukumbuta & Others v Choobana & Others (SCZ 8 of 2003) [2003] ZMSC 18 (28 May 2003)

MUKUMBUTA MUKUMBUTA SAM MUKAMAMBA KWELEKA MUBITA MOOTO MOOTO AND KANDUMBA MUNGANGA v NKWILIMBA CHOOBANA LUBINDA RICHARD MBIKUSITA MUNYINDA ROSALYN MUKELABAI AND MONGU MEAT CORPORATION LTD Supreme Court Sakala, CJ, Chibesakunda and Silomba, JJS 16th November, 2002 and 29th May, 2003 (SCZ Judgment No. 8 of 2003) Flynote Civil Procedure – Consolidation of actions – Rationale and principles governing consolidation of actions. Civil procedure-Abuse of coert process- Duplication of action -Counsel liable for costs. Headnote This is an appeal against a decision of a High Court Judge at Chambers ordering consolidation of two cases, one started in Mongu under cause Number 1999/HT/16 and the other started in Lusaka under cause Number 1999/HP/1807. The facts and history of this case, represents a typical scenario of forum shopping brought about mainly by the advocates of the respondents, at the expense of the clients. The same parties, on essentially same issues have sued each other in four different causes of actions. All in all, five different High Court Judges have had dealings with these parties at one time or another raising similar issues. A single Judge of the Supreme Court was once involved. The case presents a typical example of abuse of the process of the court. The present appeal emanated from the decision of the Deputy Registrar in relation to an application for consolidation. Held: 1. 2. 3. 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. The rationale for consolidation is to save costs and avoidance of multiplicity of actions. In view of the fact that the advocates for the respondents deliberatel and consciously went forum shopping resulting in the parties being before several High Court Judges it is the advocates of the respondents and not the respondents who should be punished in costs. S. Sachika of Lighthouse Chambers for the appellants. M. Chipazya with Ms. Z. Essa of Simeza Sangwa and Associates for the respondents. Judgment SAKALA, CJ, delivered the judgment of the court. This is an appeal against a decision of a High Court Judge at chambers ordering consolidation of two cases, one started in Mongu under Cause No. 1999/HT/16 and the other started in Lusaka under cause No. 1999/HP/1807. The facts and the history of this case, represent a typical scenario of forum shopping, brought about mainly by the advocates of the respondents at the expense of the clients. The same parties, on essentially same issues, have sued each other in four different causes of actions. All in all, five different High Court Judges have had dealings with these parties at one time or another raising similar issues. A single judge of this court was once involved. The Supreme Court too handled these parties. The present appeal emanated from the decision of the Deputy Registrar. The case presents a typical example of abuse of process of the court. The present appeal centres on causes Nos. 1999/HT/16 and 1999/HP/1807. The history is this:- On 8th October, 1999, the appellants issued a writ of summons against the respondents in cause No. 1999/HT/16 at Mongu, claiming for an account of the 4th respondent to be taken, for the return of funds and for several declarations and for an injunction against the respondents. Subsequent to the writ, an ex-parte order for an injunction was granted on 10th October, 1999, to the appellants in that cause. This ex-parte order has to-date not been heard inter partes. On 3rd November, 1999, the respondents commenced their own action against the appellants at Lusaka under cause No. 1999/HP/1807, claiming for a declaration, injunction and damages against the appellants. In that action, at Lusaka, the respondents were, on 4th November, 1999, unsuccessful in their application for a counter injunction against that of the appellants at Mongu. In that application, the court advised the respondents to enter an appearance, file their defence and counter-claim in the Mongu action. Thus, the respondents entered appearance, filed a defence and counter claim to the Mongu action which counter- claim was their claim in the Lusaka action in cause No. 1999/HP/1807. Cause No. 1999/HP/1807 commenced at Lusaka became a counter-claim in the Mongu action. On 10th October 1999, the appellants applied to strike out cause No. 1999/HP/1807, as being an abuse of process and a duplicate action. This application was to be heard before the Deputy Registrar. While waiting to hear this application, the respondents applied to consolidate cause No. 1999/HT/16 at Mongu, to cause No. 1999/HP/1807 at Lusaka. This move was taken after the respondents’ application to transfer the Mongu cause to Lusaka was unsuccessful. The Deputy Registrar dismissed the application for consolidation on the ground of multiplicity. Suffice it to mention that in addition to these actions, the respondents had commenced, at the Principal Registry a parallel cause of action under cause No. 2000/HP/0220 which was dismissed. Then there was a similar parallel action under cause No. 1999/HP/2069, also raising same issues. This was settled in the Supreme Court by the consent of the parties. In the application for consolidation before the Deputy Registrar, he pointed out that the counter-claim in the action at Mongu was the main claim in the action commenced by the respondents at Lusaka. The learned Deputy Registrar observed that there was a danger of having conflicting decisions; this was true. He noted that had the injunction at Lusaka not been refused, it would have been in direct conflict with the one granted at Mongu, this was also true. The Deputy Registrar considered the issue of consolidation. He observed that since the claim at Lusaka had already been raised as a counter claim in the cause at Mongu, it was unnecessary to consolidate the two matters. The Deputy Registrar refused to consolidate the matter and dismissed the cause at Lusaka, namely 1999/HP/1807, on the ground of multiplicity. This refusal, meant that the only surviving action, among the parties, was 1999/HT/16 at Mongu, as the respondents had not appealed in the other matters commenced by them. Aggrieved by the decision of the Deputy Registrar, the respondents appealed to a High Court Judge at chambers. In a one and half page ruling, the learned Judge at Chambers noted that the respondents’ action was dismissed by the learned Deputy Registrar on ground of multiplicity of actions. Without considering the history of the application, the appellate High Court Judge observed that he saw no irregularity in the writ issued at Lusaka and he saw no reasons for refusing the consolidation of the matter earlier commenced at Mongu and the subsequent matter at Lusaka. According to the appellate Judge at chambers, the subject matter was the same; the parties were more or less the same except that in the matter commenced at Lusaka, there were more parties. The learned Judge at chambers found that the respondents’ case was a proper case for consolidation. He held that an application for consolidation cannot be dismissed on ground of multiplicity of actions because consolidation is in fact designed to avoid multiplicity of actions. The appellate learned Judge at chambers allowed the appeal from the decision of the Deputy Registrar. He ordered that the two actions namely; 1999/HT/16, earlier commenced at Mongu and 1999/HP/1807 commenced subsequently at Lusaka, be consolidated. Hence the appeal before this court. Mr. Sachika on behalf of the appellants filed written heads of arguments which commenced with general remarks supplemented by oral submissions based on four grounds of appeal. The first ground of appeal is that the learned Judge at chambers misapprehended the facts and the history attending to the two consolidated actions, the law and procedure in holding that cause No. 1999/HP/1807commenced later at Lusaka, was a proper case for consolidation with cause No. 1999/HT/16, commenced earlier at Mongu, ignoring that the two more less parallel actions had been decided at the High Court and Supreme Court levels involving the plaintiffs and the same issues. In his written heads of argument, Mr. Sachika on behalf of the appellants contended and argued on this first ground that had the learned appellate Judge at chambers considered facts before him that formed part of the record, he would not have consolidated case No. 1999/HT/16 to cause No. 1999/HP/1807, because the appellants, who included Mongu Meat Corporation Ltd, took out a writ of summons at Mongu, under cause No. 1999/HT/16 on 8th October, 1999. The Defence and the Counter-claim to cause No. 1999/HT/16, which formed the basis of causes No. 1999/HP/1807 and 2000/HP/0220, had been dismissed as abuse of process by the Deputy Registrar at Lusaka and also by a High Court Judge at Lusaka and the respondents did not appeal. Mr Sachika submitted that by ordering the consolidation of cause No. 1999/HT/16 to 1999/HP/1807, the High Court appellate Judge overruled a fellow High Court Judge and the decision of the High Court without power and authority. Counsel pointed out that another High Court Judge had made a finding and holding under cause No. 1999/HP/1807, that the cause was unnecessary but that the respondents enter an appearance at Mongu and file their Defence and Counter-claim, which the respondents did and thus reproducing the claim under cause 1999/HP/1807, as a counter-claim in cause No. 1999/HT/16, at Mongu. It was submitted that in these circumstances, a consolidation of the two actions was a misdirection. On behalf of the respondents it was contended on this first ground that the appellate High Court Judge at chambers was on firm ground when he held that the case at Lusaka was a proper case for consolidation with a case at Mongu, since the subject matter was the same and the parties the same except that in one there were more parties. We have addressed our minds to the arguments and submissions on ground one of appeal. Both parties appear to us to be agreed on the principle governing consolidation namely; common question of law or facts and rights to relief arising out of the same transaction. The rationale for consolidation, namely saving of costs, is also agreed. What is in issue here is whether the facts raise the question of multiplicity or duplicity of actions. On behalf of the appellants the argument is that there were here two parallel, duplicate actions and therefore nothing to consolidate. We have already observed that there was forum shopping in this case. A cause of action had been commenced by the appellants in Mongu in which they had in fact obtained an exparte order for an injunction. The advocates for the respondents, instead of reacting to that action, proceeded to commence their own action in Lusaka before a different Judge. Correctly so, that Judge at Lusaka found that action unnecessary and advised the respondent’s advocates to enter appearance in the cause at Mongu and file a defence and counter-claim, which they did. But the advocates, subsequently, decided to apply for consolidation before the Deputy Registrar. This was, in our view, a clear case of abuse of process of court. We disapprove of it in very strong terms. We agree that avoidance of multiplicity of actions is the more the 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 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 the parties seem to be residents at Mongu. We accordingly order that cause No. 1999/HP/1807 be consolidated to cause No. 1999/HT/16. To save on costs, as it appears that all the parties are residents of Mongu, we order that the consolidated cause be heard at Mongu. In essence ground one of appeal fails. This conclusion essentially resolves grounds two and three that the appellate Judge misapprehended the facts and misdirected himself on the holding of the Deputy Registrar; and that the appellate Judge at chambers took a wrong or incorrect view of the proceedings before the Deputy Registrar. The gist of the appellants’ arguments on ground one is that cause No. 1999/HT/16 and cause No. 1999/HP/1807, stand as duplicates of each other and the disposal of cause No. 1999/HT/16 alone, disposes of cause No. 1999/ HP/1807. It was submitted that no consolidation was possible or necessary or desirable on the facts of the two causes. As we have already stated, apart from the two causes exhibiting duplication, there was also multiplicity of actions warranting consolidation. Ground two also fails. On ground three, the gist of the argument was that the appellate Judge at Lusaka was not called upon to check the writ of summons for irregularity as the irregularity was in the duplication of the same cause of action. It was submitted that the Deputy Registrar correctly found the multiplication or duplication of the same cause of action as a fatal irregularity and dismissed cause No. 1999/HP/1807. For the reasons already given, ground three cannot succeed as we are satisfied that there was a basis for ordering consolidation of the two causes namely multiplicity of actions. The last ground is a complaint that the appellate Judge failed to award the appellants the costs for the proceedings so far. It was argued on behalf of the appellants that the appellate Judge at chambers should at least have punished the respondents in costs for having deliberately started counter-actions to duplicate the original 1999/HT/16 and for bringing the High Court into ridicule by making three Judges give conflicting decisions on the same subject matter. There is force in this argument. The High Court was certainly brought into ridicule by the forum shopping exercise brought about by the advocates for the respondents. But in our considered view, it is not the respondents who should be punished in costs. They are not lawyers themselves. They may not have been following what was going on. On the other hand, their advocates, deliberately and consciously went forum shopping resulting in the parties twice being before this Court and before several High Court Judges. It is the advocates of the respondents and not the respondents who should be punished in costs. This ground on costs therefore succeeds. The result of the appeal is that the respondents have succeeded on three grounds while the appellant has succeeded only on one ground. This means the whole appeal fails. But for the reasons stated, the advocates of the respondents are hereby condemned to pay costs to the appellants both in the CN. A. B. 00, 2006N. A. B. 00, 2006N. A. B. 00, 2006N. A. B. 00, 2006N. A. B. 00, 2006N. A. B. 00, 2006N. A. B. 00, 2006N. A. B. 00, 2006ourt below and in this Court to be taxed in default of agreement. Appeal dismissed