Power Equipment Ltd v Barclays Bank of Zambia Ltd (Appeal 17 of 2001) [2001] ZMSC 83 (19 July 2001)

IN THE SUPREME COURT FOR ZAMBIA -Appeal No. 17 of 2001 HOLDEN AT LUSAKA [CIVIL JURISDICTION] BETWEEN POWER EQUIPMENT LIMITED - Appellant AND BARCLAYS BANK OF ZAMBIA LTD - Respondent Corum: Lewanika, DCJ; Chaila, JS; and Mambilima, JS, on 19th July, 2001 and----------- 2002. For the Appellant: Mr. R. Simeza of Simeza Sangwa & Associates For the Respondent: Mr. G. Locha of H. Kemp & Company JUDGMENT MAMBILIMA JS, delivered the Judgment of the Court. Cases referred to: (1) Attorney-General v Corporation of Birmingham (1880) 15 Ch D 423 at 425. (2) Attorney-General v Tall and Zambia Airways Corporation Limited (1995- 97) ZR 54. (3) Zulu v Avondale Housing Project Limited (1982) ZR 172 (4) London Ngoma & Others v LCM Company Limited and Another SCZ Judgment No. 22 of 1999. We heard this appeal with our brother, the late Chaila, JS, before his unfortunate demise. This judgment should be taken as the majority decision of the Court. This is an appeal against the Ruling of the Court below upholding the decision joining the Respondent to the action as the second Defendant after judgment had already been entered against Goldtronics Limited, the first Defendant in the case. The brief facts of this case are that the Appellant, Power Equipment Limited, sued Goldtronics Limited in the Court below, seeking the return of a generator, which was in the possession of Goldtronics Limited, alleging that the said Goldtronics Limited had not paid for it. The Appellant also sought damages for use of the generator from the date that Goldtronics Limited acquired possession; a preservation order in respect of the generator and costs. The Appellant was granted a preservation order and later obtained Judgment in Default of Appearance. Meanwhile, Goldtronics Limited had sold the generator in question to the Respondent here in who is now in possession of the same. The Respondent applied and was joined as a party to the proceedings as the second Defendant before the Deputy Registrar. The Appellant then appealed to a Judge in Chambers against this decision. The judge dismissed the appeal on the premise that if the Respondent was not joined as a party, it would commence a fresh action thereby giving rise to a multiplicity of actions. The Court below also reasoned that, there being a default judgment, it was open to attack by the Respondent immediately it became a party to the action. Tire Appellant has advanced one ground of appeal, which is that the Learned Deputy Registrar erred in law by joining tire second Respondent to the action after judgment had already been entered against the first defendant who was the only defendant at tire time. The Appellant argues that joinder can only be ordered before judgment. Mr. Simeza, for the Appellant submitted that the words ‘at or before the hearing of a suit’ in Order 14 Rule 5 of the High Court Rules mean before delivery or entry of judgment. Joinder cannot validly be made after judgment has been entered or delivered. He has referred us to the decision in the case of Attorney General v Corporation of Birmingham (1) in which Jessel M. R. Stated: “...it was never intended to allow an amendment of the pleadings to introduce fresh parties after final judgment. The rule only applies before the decree, for the parties are to be brought before the court to enable it to ‘adjudicate upon and settle all the questions involved in the action...’ If it becomes necessary to enforce that judgment against persons who have acquired a title after it was made, an action must be brought for that purpose....” Mr. Simeza has also referred us to our decision in the case of The Attorney General v Tall and Zambia Airways Corporation Limited (2) in which we held that the words ‘at or before the hearing of a suit’ in Order 14 Rule 5 of the High Court Act mean before delivery of a judgment in a suit and joinder can validly occur before judgment has been delivered. He points out that in this case, the default judgment was drawn up and entered well before the order for joinder was made thereby envoking the provisions of Order 14 Rule 5(1). According to Mr. Simeza, the Learned Deputy Registrar acted against the Letter and spirit of tire said provisions and seriously misdirected himself in ordering the second Respondent to be joined as a party. In reply, Mr. Locha, for the Respondent, submitted that that the Judge did not err in upholding the decision of the Deputy Registrar to add the Respondent as a party. The Judge took into account the fact that the Court has inherent powers to add a party to avoid a multiplicity of actions. He referred the Court to Section 13 of the High Court Act, which gives jurisdiction to the Court to determine all matters in controversy to avoid a multiplicity of actions. Mr. Locha also points out that the application for joinder was brought under Order 15 Rule 6 of the Rules of the Supreme Court, which gives thp court wider powers to resolve all the issues. He went on to state that the judgment in question had not been executed. The plaintiff in the case was yet to apply for assessment. We have carefully considered the submissions by both learned counsel and the issues raised. Indeed, a proper construction of Order 14 Rule 5(1) of the High Court Act leads to a position that under this Order, a Court or a Judge can only join a party to an action before judgment is delivered. But, as we pointed out in the Tall case, Section 13 of the High Court Act empowers the Court to determine all matters in controversy between the parties in order to avoid a multiplicity of actions. In that case, we also referred to our decision in the case of Zulu v Avondale Housing Project Limited (3) in which Ngulube DC J, as he then was stated: “1 would express the hope that trial courts will always bear in mind that it is their duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined with finality. A decision which, because of uncertainty or want of finality, leaves doors open for further litigation over the same issues between the same parties can and should be avoided.” In effect therefore, the court always has inherent jurisdiction to join a party to an action in the interests of justice. We upheld this view in our decision in the case of London Ngoma &Others v LCM Company Limited & Another (4) where, a party was joined to an action after a consent judgment had been entered. In our view, the Learned Judge was on firm ground to have upheld the decision of the Deputy Registrar on the reasons that he gave. This stands dismissed with costs. D. M. L. Lewanika DEPUTY CHIEF JUSTICE I. C. M. Mambilima JUDGE SUPREME COURT