Mwiinga Maxwell and Ors v Modrow Mpande (Appeal No. 191/2021) [2023] ZMCA 296 (8 December 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 191/2021 BETWEEN: MWIINGA MAXWELL 1 ST APPELLANT SAMAMBA MUMBUWA 2ND APPELLANT MBOLONGWE RAPHAEL 3RD APPELLANT AND MODROW MPANDE RESPONDENT CORAM: Chashi, JJA Muzenga and Patel, 2023 and 8th December 2023. On 19th September For the Appellants: Mr. N. Zulu, Messrs Dove Chambers, Partners agents for MAK For the Respondent: Mr. K. Phiri, Messrs Malama & Co. JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Hermann Josef Kibler v. Apollo Agricultural Holdings Limited -SCZ Appeal No. 149 of 2015. J2 2. Col. Paul Chikuswe Chilanga (Rtd) (sued in his capacity material time -CAZ Appeal No. 53 of 2017. (Rtd) v. Lt. General as the Army Commander I. S. A. Chisuzi at the 1.0 INTRODUCTION 1.1 This is an appeal against the judgment of Mulife, J, as he then was, dated the 16th of April 2021, in which he dismissed the appellant's cause for want of merit. 2.0 BACKGROUND 2.1 The background to this appeal is that the appellants sued the defendant (now respondent) by way of writ of summons claiming the following reliefs: (i) A declaration committee void. or an order that KASFA interim is unlawful established thus null and (ii) Declaration that the expulsion of the plaintiff as members form KASFA was unlawful. (iii) For payment of refund to of annual contributions KASFA from 1996 to 2019. (iv) Shares on every asset that KASFA owns and has. J3 (v) Payment in the sum of for money to the plaintiffs each which they used to buy shares K4,400.00 through interest Zambia. KASFA as at the current per agreement with together bank lending rates of (vi) An order for injunction committee from withdrawing KASFA account because any money from restraining the interim they are not signatories. (vii) An order for an injunction restraining committee from conducting elections for the Association resolved Court. by the Honourable or holding until this matter is the interim of (viii) An order for an injunction property manner pending of KASFA to be closed final determination. that the office­ or kept in such (ix) Damages for loss of contract would have benefited interim unlawful from was it not for the KASFA. operating committee which members (x) Any other relief as the court may deem fit. (xi) Costs of and incidental to these proceedings. 2.2 The Writ and Statement of claim were subsequently amended, following an application by the appellants, which amended the second claim to now read: J4 that KASFA new executive "A declaration under the same Chairman previous interim null and void thus not lawful committee is unlawfully bearers." office and Secretary General committee of the established, 2.3 The respondent filed a defence in which the appellants' claims were contested counter and additionally claimed the following: (i) A declaration that the plaintiff is not a member of KASFA. (ii) Injunction himself with the operations restraining or through his the plaintiff either by agents from interfering and management of KASFA. damages. (iii) General (iv) Costs. (v) Any other relief the court may deem fit. 2.4 At the time of commencement of trial, the plaintiffs abandoned all their other claims in the originating process other than the first two claims, which for clarity we shall reproduce below: (i) A declaration committee void or an order that KASFA interim is unlawful established thus null and (ii) A declaration that KASFA new Executive and Committee under the same chairman secretary committee is unlawfully void thus not lawfully general of the previous bearers. established, office null and interim JS CASE 3.0 APPELLANT'S 3.1 The appellants' evidence was that an extra ordinary meeting was called following some irregularities in the manner in which the executive committee dealt with the affairs of Kaleya Smallholders Farmers' Association (KASFA), an association registered under the Societies Act. The extra ordinary general meeting passed a vote of no confidence in the executive committee and they were removed. On the same day, their members went ahead to elect members of the interim committee. According to the appellants, this decision was forced on the members and it also violated Article 5.9(d) of the Constitution of KASFA. 3.2 It was averred that the appellants' committee, being the disciplinary committee, should have run the affairs of KASFA for 60 days after which they must call for elections, after an audit is done, in order to usher in a new executive committee. 3.3 It was the appellants' evidence that the interim committee was illegally in office and illegally ran the affairs of KASFA and their subsequent being KASFA executive committee members was null and void. 3.4 The appellants further averred that the respondent was not eligible to contest the election as he had audit issues pending at the police. J6 3.5 When cross-examined, the witness (who was the 1st plaintiff) admitted that the extra ordinary general meeting was chaired by the 2nd respondent as chair of the disciplinary committee and him as secretary. He also admitted having subsequently facilitated into the ushering office of the interim committee in violation of the Constitution. He further averred that the election of the interim committee following the removal of the executive committee, though done on the same day, 23rd July 2019, was within the 60 days period. This was generally the close of the appellant's case. CASE 4.0 RESPONDENT'S 4.1 The respondent called three witnesses. The gist of the evidence was that the respondent convened a meeting on behalf of the appellants' Disciplinary Committee, in his then capacity of Advisory Committee Chairperson, on the 23rd of July 2019. The meeting over was presided by the appellants' which the executive Disciplinary Committee at committee was removed, after which the appellant's Disciplinary Committee proceeded to conduct elections which ushered in the interim committee. J7 4.2 Later his present executive committee was elected by the general membership of KASFA. The appellants were expelled from KASFA on 3rd of September 2019. 5.0 DECISION OF THE COURT BELOW 5.1 The learned trial court found that the appellants having been expelled from KASFA and having abandoned the claims which challenged the legality of their expulsion from KASFA, now lacked locus standi to sue in matters to do with KASFA as they were no longer members. They can as such not institute proceedings on behalf of the organisation to which they are not members. 5.2 Further that the appellants had not demonstrated how they shall be affected by the reliefs they were seeking from the court below, considering that the reliefs are for the sole benefit or detriment of KASFA and its members. The action was thus bound to fail on this score for want of locus standi. 5.2 The court below went further to consider the merits of the cause and held that the interim committee was properly ushered into office in compliance with Article 5.9(d) of the KASFA Constitution as it was elected within the 60 days period stipulated and that the consequent J8 election of the executive committee was regular. The appellant's cause was dismissed for want of merit. 5.3 On the respondent's counter the claim, the trial court granted injunction sought but the claim for general damages was declined for want of evidence. 6.0 GROUNDS OF APPEAL 6.1 Disgruntled with the judgment of the lower court, the appellants have appealed to this Court advancing three grounds of appeal couched as follows: (i) The Court erred in law and fact when it held that Kaleya Small Holders Farmers' Association interim July, 2019, was legally on 23rd committee which was selected selected. and properly (ii) The Court erred both in law and fact when it held that the current executive Kaleya Small Holders Farmers' properly committee of the was and ushered into office. selected Association (iii) The Court erred both in law and fact when it held that the members of the current executive committee of Kaleya Small Holders Farmers' Association members despite their being overwhelming to be elected as committee qualified J9 evidence criminal that some of them still had pending investigations pending at the police. 7.0 APPELLANT'S ARGUMENTS 7.1 Learned counsel for the appellants argued ground 1 and 2 together and drew our attention to Article 5.9 paragraph (d) of the KASFA Constitution which stipulates that: "( d) Whenever a public meeting passes a vote of no in the executive confidence disciplinary KASFA for sixty (60) days." committee, the committee SHALL run the affairs of 7.2 It was contended that where the executive committee is removed by way of passing a vote of no confidence by the general membership, it is mandatory for the Disciplinary Committee to run the affairs of KASFA for sixty (60) days. Counsel argued that the rationale for allowing the Disciplinary Committee to run the affairs of KASFA after a vote of no confidence was inter-alia to allow for auditing of the KASFA books of accounts so that clean books of accounts are handed over to the new executive committee. It was learned counsel's further contention that the 60 days period also enable their Disciplinary Committee to scrutinise the eligibility of aspiring candidates. JlO 7.3 Counsel argued that because the foregoing was not followed, the learned court below erred when it found that the interim committee and the executive committee were properly elected. 7.4 In support of ground 3, counsel argued that the trial court erred when it held that the members of the executive committee of KASFA qualified to be elected despite there being overwhelming evidence that some of them had pending criminal investigations at the police. 7.5 Counsel contended that the executive committee was illegal in the sense that the books of accounts were not audited before the said committee was ushered into office as provided in Article 5.9(e) of the KASFA Constitution. Secondly, that the candidates were not scrutinised by the Disciplinary Committee as provided by the KASFA Constitution. 7.6 We were referred to Article 5.9(g) of the KASFA Constitution which provides that "If anyone is found with an outstanding police or court related allowed with KASFA audit review." to contest to audit, he/she shall not be case at the Jll 7.7 It was argued that the executive committee consists of office holders who have pending matters at the police in connection with audit queries involving KASFA funds and as such they are illegally in office. 7.8 Counsel therefore prayed that the appeal be allowed with costs to the appellants. 8.0 RESPONDENT'S ARGUMENTS 8.1 Counsel for the respondent opposed the appeal and stated on the onset that the appellants misunderstood the ratio decidendi in the judgment of the lower court and if they did, they would not have launched the within appeal. Counsel indicated that they would argue the 3 grounds together as they were related. 8.2 It was learned counsel's submission that the appellant's cause was dismissed on the basis that they lacked locus standi having been expelled from KASFA. We were referred to a number of authorities on this score, including the case of Hermann Josef Kibler v. Apollo Agricult ural Holdings Limited1 and our decision in the case of Col. Paul Chikuswe Chilanga (Rtd) v. Lt. General I. S. A. Chisuzi (Rtd) (sued in his capacity as the Army Commander at the material time. J12 8.3 It was learned counsel's submission that the appellants having abandoned the challenge to their expulsion from the Respondent Association were left with no locus standi to proceed with the matter as they accepted their expulsion and ceased to be members of the association. It was counsel's further argument that the learned trial court was on firm ground as there existed no basis upon which the reliefs sought could be granted. 8.4 Learned counsel had the went on to argue that even if the appellants requisite locus standl their appeal is bound to fail as there was overwhelming evidence that the first and second appellants presided over the meeting which passed a vote of no confidence in the executive committee and went further to preside over the elections which saw the ushering into office of the interim committee. 8.5 Counsel contended that the interim committee was elected in accordance with the KASFA Constitution within 60 days. It was argued further that Article 5.9(d) should not be read in isolation but together with paragraph (e). It was argued that since the proposed names were brought to the attention of the Disciplinary they had Committee, J13 an opportunity to scrutinise the candidates within the meaning of Article 5.9(f) of the KASFA Constitution. 8.6 It was lastly argued that if the members of the interim committee had pending cases, the 1st and 2nd appellants, who were Secretary and Chair of the elections at the time the candidates they (1st were elected, and 2nd appellant) would have rejected them. 8. 7 It was argued that the interim committee, became which subsequently the executive committee was properly elected into office in the elections presided over by the 1st and 2nd appellants being Secretary and Chairman of the Disciplinary Committee. 8.8 Learned counsel prayed that the appeal be allowed. 9.0 DECISION OF THE COURT 9.1 We have carefully considered the evidence the on the record, judgment of the court below and the arguments by both parties. The preemptory issue in this appeal is whether had the the appellants requisite locus standi to procure the cause in the court below and consequently the within appeal. 9.2 The appellants in the court below, in the initial originating process challenged the legality of their expulsion from KASFA. This was clearly J14 stipulated in their second claim. They subsequently amended the originating process, completely dropping the challenge to their expulsion as was contained in the second claim. 9.3 The trial court found that having been expelled from KASFA and having withdrawn the challenge to their expulsion, they lacked locus standi since they were no longer members of KASFA. In the Hermann Josef Kibler case supra, the Supreme Court held that: member ceases to have the right to be given "An expelled back a company termination interests of employment house he was evicted from by virtue of through as his an injunction by virtue of his expulsion." in the house seized 9.4 The appellants have not in the grounds of appeal before this court challenged the decision of the trial court, neither have they challenged their expulsion. This clearly means that the expulsion and the finding of the trial court, having not been appealed against stands. 9.5 We agree with learned counsel for the respondent that the appellants lack locus standi to sue and consequently lack locus standi to prosecute this appeal. On this score, we find no merit in the appeal and we dismiss it. 9.6 Because of the position we have taken, we are precluded from JlS considering the appeal. 10.0 CONCLUSION 10.1 Having found that the appellants lack locus standi in this matter, we dismiss the appeal. 10.2 We award costs to the respond J. Cba i COURT OF APPEAL JUDGE K. Muzenga ···············�·½. ,&? ........ . A. N. Patel, SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE