Pineroads & General Contractors Limited and Ors v Access Bank Zambia Limited (APP NO. 22/2022) [2023] ZMCA 315 (17 November 2023)

HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: PINEROADS & GENERAL CONTRACTORS LIMITED 1 ST APPELLANT COLLINS KABWE, MUMBA MUSOSHA & MIRRIAM KASONGO MUSOSHA (acting in their capacity as Administrators of the estate of the Late Chrispin Mumba Musosha) CHAPA YOTAM CHIKAMBA CHISALA KAPOTA MIRRIAM KAPOT A AND 2ND APPELLANT 3RD APPELLANT lST APPLICANT 2ND APPLICANT ACCESS BANK ZAMBIA LIMITED RESPONDENT CORAM: SIAVWAPA, JP, NGULUBE AND CHEMBE, JJA. On 13th November, 2023 and 17th November, 2023. For the Applicants Mr. G. Haakainsi, L. M Chambers For the Respondent : I. Siame, T. M. S. Legal Practitioners RULING NGULUBE JA, delivered the Ruling of the Court. -Rl- Cases referred to: l. London Ngoma, Joseph Biyela, Richard Ng'ombe, Friday Simwanza and LCM Company Limited and United Bus Company of Zambia Limited (In Liquidation) SCZ Judgment Number 22 of 2. 3. 4. Elias Tembo vs Henry Sichembe and Two Others, SCZ Judgment 8/ 141 / 2014 BP Zambia Plc vs Interland Motors Limited (2001) ZR 37 Firestone South Africa (PTY) Limited vs Genticura AG (1977) 4 ALL SA 600 (A) 5. Milan Gordie vs Japhael Mbizule Appeal Number 18/ 2017 6. 7. BP Zambia Plc vs Interland Motors Limited (2001) Z. R. 37 (SC) !tuna Partners vs Zambian Open University Limited SCZ/ 8/ 128/ 2008 8. Owens Bank Limited vs Bracco & Others (1992} 2 All ER 193 Legislation referred to: 1. The Court of Appeal Rules, 2016. Other Works Referred to: 1. Black's Law Dictionary, 9th Edition. -R2- 1.0 INTRODUCTION 1.1 This is the applicants' Notice of Motion pursuant to Order VII Rules 1 and 2 of the Court of Appeal Rules, 2016. The applicants seek an order to set aside the Judgment of this Court dated 26th November, 2021, on the following grounds- 1. The Judgment was made in the absence of the applicants who were not parties to the action but have sufficient and major interest in the subject property. 2 . The Judgment stems from a matter which was commenced through multiplicity of actions and abuse of Court process. 2.0 BACKGROUND 2.1 The history of the matter is that on 26th November, 2021 this Court delivered a Judgment in which it found that Chapa Yotam Chikaba consented to the property, Farm 1445 Central Province, being used as security for the loan facility that Pineroads and General Contractors Limited, Collins Kabwe, Mumba Musosha and Mirriam Kasongo Musosha obtained from the respondent. 2.2 The Court found that the said Chapa Yotam Chikaba as mortgagor willingly executed the agreement and was bound by -R3- the terms of the third party mortgage. The appeal was accordingly dismissed with costs to the respondent. 2.3 In the affidavit in support of the Notice of Motion deposed to by the first applicant and the second applicant, they state that they and their siblings were beneficiaries of the estate of their late father Mr. Bathuel Philemon Kapota who died on 23rd May, 1999, leaving properties which included Farm 1445, Kabwe. Mr Chapa Yotam Chikaba was appointed as executor of the Will. 2.4 The applicants deposed that the said executor, Chapa Yotam Chikaba obtained Probate and changed ownership of Farm Number 1445, Kabwe, and subsequently obtained a certificate of title in his name without consulting the beneficiaries under the Will. 2 .5 That the said executor acting with Chrispin Mumba Musosha, the second appellant, mortgaged the property Farm 1445 Kabwe to Access Bank Limited for a loan facility of K2,800,000.00. 2.6 The parties commenced an action under Cause Number 201 7 /HP/ 1408, seeking a declaration that the Mortgage Deed was null and void and that it be discharged. The parties were -R4- later referred to mediation but the dispute was not settled. As they awaited a trial date, they were informed that a Judgment had been delivered by another Judge of the Commercial Court under Cause 2020/HPC/292 in which the mortgage was enforced. 2. 7 The applicants later learnt that there was an appeal in this court against the Judgment of the High Court. However, before they could be joined as parties to the appeal, the applicants learnt that a Judgment had been rendered by this court, dismissing the appeal . 2.8 The applicants were later joined as parties by a single Judge of this Court. They accordingly seek to set aside the Judgment of this Court and quash a ll the proceedings in the lower Court so that the matter can be h eard under Cause Number 2017/ HP/1408 . This Court was urged to stay execution of the Judgment dated 26th November, 202 1 so that the applicants can be given an opportunity to be heard. 2 .9 The applicants seek an order of stay of execution of the Judgment dated 26th November, 202 1, citing sufficient reasons warranting the setting aside of the Judgment of this Court. They argued that if the order of stay is not granted they will -RS- suffer irreparable injury as the respondent will dispose of the land in issu e which is their inheritance from their late father's estate. 2.10 The applicants further seek an order to set aside the Judgment of this Court so that the applicants can have an opportunity to be heard. It is submitted that they have major interest in the property which is the subject of these proceedings. The case of London Ngoma, Joseph Biyela, Richard Ng'ombe, Friday Simwanza and LCM Company Limited and United Bus Company of Zambia Limited (In Liquidation). 1 It was argued that the applicants have demonstrated sufficient interest in the matter to warrant the setting aside of the Judgment of this Court. The case of Elias Tembo vs Henry Sichembe and Two Others2 , was referred to, where the Supreme Court held , inter alia, that:- "A Judgment that is obtained in the absence of a party and may be liable to be set aside. " 2.11 It was argued that the commencement of the action under Cause number 2021/HP/0292 was not a multiplicity of actions and abuse of Court process as there was another matter pending under Cause number 2017 / HP/ 1408 over the same subject matter with the same parties. The case of BP -R6- Zambia Plc vs lntet·land Motors Limited3 was cited wh ere the Supreme Court guided that: "It will be regarded as an abuse of process if the same parties re-litigate the same subject matter from one action to another or from one Judge to another." 2.12 The Court was urged to stay the Judgment d a ted 26th November, 2021 a nd s et it a side so th a t the issues in this m a tter b e dealt with under the first action , Cause number 20 17 / HP/ 1408 or a lternatively be sent b ack to the High Court for re-hearing to which the a pplicants will b e parties. 3.0 RESPONDENT'S CONTENTIONS 3. 1 The Respondent filed an affid avit 1n opposition deposed to by Christopher Witola , the Recoveries Officer in the employ of the Respondents. 3.2 It was deposed that the applicants sh ould have pursued the 3 rd app ellant in the m atter, Chapa Yotam Chikaba, in separate proceedings as opposed to a pplying to set aside the judgment dated 26th November, 2020 which is a valid Judgment. 3.3 It was deposed that t h e third-party mortgage between the 1st a ppellant and 3rd appellant was valid for all intents and purposes -R7- and the Respondent was within its right to enforce th e security wh en the 1st, 2 nd and 3rd appellants defaulted on their loan obligations. 3.4 The deponent stated that a search at the Ministry of Lands did not reveal any defect in the 3rd appellant's title to the property which is the subject of this matter. It was deposed that the respondent commenced the action 1n the lower Cou rt to enforce the Mortgage Deed between the parties to which the applicants were strangers. That th e applicants were not privy to the loan agreement and as such could not be made parties to the action in the Comm ercial Court. 3.5 It was further deposed that there was no multiplicity of actions as the subject matter and the reliefs that were sought in the two actions were different as in the respondent's matter it was merely enforcing the mortgage deed entered with the respondent. 3.6 It was deposed that there is no procedure in the Court of Appeal that allows the re-opening of the Judgment once it has been delivered as the Court becomes .functus officio. -R8- 3.7 The respondent filed heads of arguments in opposition and submitted that there is no procedure for the Court of Appeal to re-open a matter where it has already pronounced itself and that once a judgment has been delivered, the Court is functus officio. 3.8 The South African case of Firestone South Africa (PTY) Limited vs Genticura AG4 was referred to where the Court stated that as a general rule, a Court has no power to act aside or alter its own final order as once a Court has pronounced itself, in a final judgment, it becomes functus officio as its authority over the judgment matter ceases. 3.9 Further, the principle of finality of litigation 1s that it is in the public interest that litigation be b r ought to finality. It was submitted that the applicants' application is irr egular a nd frivolous as the Court has a lready discharged and fulfilled its function in the matter. This Court was urged to dismiss the applicants' contentions with costs to the respondent. 4.0 APPLICANTS' AFFIDAVIT IN REPLY 4. 1 The applicants filed an affidavit in reply on 12 th October, 2023, in which they deposed that the issues raised are the same as -R9- those which are subject of the proceedin gs pending under Cause Number 2017 / HP/ 1408. 4 .2 The subject matter under the cause highlighted above is the same as in the m a tter b efore the Commercial Court for Farm Number F / 1445/ Kabwe. 4. 3 The applicants maintain that there was a multiplicity of actions and an abuse of Court process wh en the respondent commenced the action under Cause Number 2021/ HP/ 0292 which led to the appeal in th is Court and the judgment that they seek to set aside . This Court was urged to set aside the judgm ent which was given in the absen ce of the parties, th e applicants herein. 5.0 HEADS OF ARGUMENTS IN REPLY 5.1 The applicants filed heads of argument 1n reply. The case of Milan Gordie and Japhael Mbizule5 was cit ed where the Supreme Court s ta ted that- "Any judgment obtained against any party in the absence of such party may for sufficient cause be set aside by the Court upon such terms as may seem fi t" -RlO- 8.2 This Court was urged to stay its judgment and set it aside in the interest of justice. 6.0 DECISION 6.1 We have considered the affidavit evidence and the arguments by the parties. The issue which falls for determination of this Court is whether the judgment of this Court should be set aside on account of the fact that it was made in a mat ter which was commenced through multiplicity of actions and was made in th e absence of the applicants. We will first address the issue whether the judgment stemmed from an action which was commen ced through multiplicity of actions. 6.2 Multiplicity of actions has been frowned upon in this jurisdiction and is regarded as an abuse of Court process. The Black's Law Dictionary 9 t h Edition defines multiplicity of actions as "the existence of two or more lawsuits litigating the same issue against the same defendant." In the case of BP Zambia Plc vs Interland Motors Limited6 the Supreme Court of Zambia elaborated this principle when it observed that- "A party in dispute with another over a particular subject should not be allowed to deploy his grievances -R11- 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. " 6.3 From the above authority, multiplicity of actions implies commencing of separate actions by the same parties in different . Courts over the same subject matter. This wou ld result in having conflicting decisions in the same subj ect matter. 6.4 In casu, the applicants commenced an action in the High Court under cause number 2017 / HP/ 1408 against the respondent (the bank) and the appellants . The 3rd appellant was the executor of the a pplicants' late father's will who h a d mortgaged Farm No. F / 1445 Kabwe (the property in issue), which formed p a rt of the estate without the a pplicants' consent as beneficiaries. Amongst the reliefs sought was a n order to discharge the mortgage deed between the 3rd appellant and the respondent a nd a declaration that the mortgage deed was null and void. The second action was commenced under cause number 2020/HPC / 0292 by the respondent as mortgagee against the appellants s eeking to enforce the third party mortgage in respect of the property in issue by -R12- foreclosure and sale. The respondent obtained judgment in its favour in the High Court and the said judgment was upheld by this Court. 6. 5 The question 1s whether the second action commenced by the respondent amounted to multiplicity of actions owing to the fact that the applicants had already commenced the first action against the 3rd appellant and the respondent. We observe that the subject matter in the both actions was the same as the two actions both concerned a mortgage deed which was secured by the property in issue. We also note that the parties were not the same because the applicants were not made parties to the second action but the appellants were parties. In justifying the second action, the respondent argues that it was a separate cause of action because the grievance was with the 1st and 2 nd appellants who obtained the mortgage and the 3rd appellant who had mortgaged the property and not the applicants. That therefore there was no need to join the applicants to the second action. 6 .6 Granted the respondents has a separate cause of action against the appellant. However, by commencing the first action, the applicants' sought to invalidate the mortgage deed between the 3 rd -R13- appellant and the respondent. The first action therefore would affect the second action in that if the Court in the first action nullified the mortgage deed, the respondent would not be able to enforce the mortgage deed in the second action. Therefore, the subsistence of the two actions would bring the administration of justice into disrepute as there is a possibility that the parties would have obtained conflicting decisions which would undermine each other from two different judges. We form the view that in as much the respondent had no grievance against the applicants, it should have raised a counterclaim against the appellants to foreclose on the mortgaged property so that all issues in dispute are determined under one cause. 6.7 The question that arises therefore is whether this Court can set aside its judgment for the foregoing reasons so tha t the issues in contention are dealt with under cause number 2017 / HP/ 1408 which was the first action. We form the view that having determined the matter and rendere d a judgment in the appeal, we became functus officio and we do not have the jurisdiction to deal with the m a tter anymore. -R14- 6 .8 According t o the Black's Law Dict ionary, th e phrase functus officio is defin ed as follows- "(Latin "having performed his or her office" ("of an officer or official body") without further authority or legal competency because the duties and functions of the original commission have been fully accomplished. " 6.9 In comm enting on the above definition, the Supreme Court of Zambia in the case of ltuna Partners vs Zambian Open University Limited7 stated that- "A Court becomes functus officio when all the substantive issues in the case are determined by it. " 6.10 We therefore form the view that this Court dealt with all the substantive issues in the appeal between the appellants and the respondent. Therefore, th ere is n o pr ocedure that allows this Court to revisit t h at decision and set aside its judgment except in very rare circumstances. The rationale for not having such a procedure is that there would be no finality to litigation if the parties are allowed to re-litigate th e matters. 6.11 Similarly, Lord Bridge in the case of Owens Bank Ltd vs Bracco and Others,s stated the following which is of persuasive valu e to this Cour t- -RlS- "An English judgment, subject to any available appellate procedures, is final and conclusive between the parties as to the issues which it decides. It is in order to preserve this finality that any attempt to reopen litigation, once concluded, even on the ground that judgment was obtained by fraud, has to be confined within such very restrictive limits." 6.12 The proper cause therefore would h ave been for the applicants to h ave joined th e proceedings as they did and then appeal against our judgm ent dated 26 th November, 202 1. 6.13 In view of the foregoing, the a pplication lacks merit and it 1s accordingly dismissed. Each p arty to bear its own costs. M. J. S IAVWAPA JUDGE PRESIDENT P. C. M. NGULUBE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL J UDGE -R16-