Sarah Nkombo Malambo (Sued in her capacity as a beneficiary and signatory Of the /of/owing companies: SparePro, AutoForce, Shaftex, Jersey Mafl, and Homemark) v Ngoza Sinkolongo Malambo (Suing in her capacity as one of The Administ rotors And a mother of minor Beneficiaries of the Estate of the Late Reeves Ma/ambo) (Appeal No. 99 of 2022) [2023] ZMCA 290 (30 June 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA No. 99 of 2022 Appeal CAZ/08/506/2021 (Civil Jurisdiction) ,iJf\J'ollC ·2'F l11-1, <:,QURI C� /l?f>f 81 1, ,i ji/30JuN_10?1 I± BETWEEN: ",._ c.wi,REG1SlJ1� '<.9� \_I'· as a beneficiary SparePro, SARAH NKOMBO MALAMBO x 50067. l\JV· and signatory (Sued in her Of the /of/owing AutoForce, Shaftex, Mafl, and Homemark) companies: capacity Jersey Appellant AND • NG OZA SIN KOLO NGO MALAMBO (Suing in her capacity The Administ Beneficiaries Late Reeves Ma/ambo) rotors of the Estate of the as one of And a mother of minor Respondent Coram: Chashi, Majula and Patel SC, JJA June 2023 and 30th June 2023 on 13th For the Appellant: Mr. M. Nalishuwa Messrs Mulenga Mundashi Legal Practitioners • For the Respondent: Mr. C. J. Musonda & Ms, Kalisilomba Messrs Jonah Sitimela & Partners JUDGMENT Patel S. C., JA, delivered the Judgment of the Court Cases referred to: 1. Salomon v Salomon, and others, (1897) AC 22. 2. Macaura v Northern Assurance Co. Limited (1925) AC 619. 3. B. P. Zambia Pie v Inter/and Motors Limited, SCZ Judgment No. 5 of 2001. 4. Citibank vs Suhayl Zambia Limited Dudhia SCZ Appeal No. 6 of 2022 5 . Pule Elias Mwila and Others vs Zambia State Insurance Corporation Limited ZLR 2015 vol 3 at p 1526. 6 . lamas Milling C o limited vs tmex International Limited ZR 79 (2002) 7. July Danobo {TIA Juldan Motors) vs Chimsoro Farms Limited (2009) ZR 148 8. Mutantika and Another vs Chipungu SCZ Judgment No. 13 of 2014 (unreported) 9. Standard Chartered Bank v Wisdom Chanda and Christopher Chanda SCZ No. 18 of 10. Nkhuwa vs Lusaka Tyre Services ZR 43 (1977) 11. Charles Mambwe and Others vs Mpelembe Properties Limited SJZ No. 36 of 2016 12. Letang v Cooper (1965) 1 QB 232 13. Graduare Property Development Limited vs Emporium Fresh Foods ltd T/A Food Lovers Market CAZ Appeal No. 138/2020 14. Embassy Supermarket v Union Bank {in liquidation) SCZ Appeal N o . 58 of 2006 15. Drummond Jackson v British Medical (1970) Association 1 AL E. R. 1094 16. lndeni Petroleum Refinery Co Ltd vs Kafco Oil Limited, Andrew Bungoni, Silas Mumba and Emmanuel Shikapuw SJZ No. 29 of 2017 17. Teklemicael Mengstab & Anr vs Ubuchinga Investments limited SCZ No. 281 of 2013 18. Concrete Pipes & Products Limited vs Kingsley Kabimba & Anr SCZ No. 14 of 2017 19. Beatrice Muimui vs Silvia Chanda SCZ Appeal No. 50 of 2000 Legislation referred to: • 1. The High Court Rules, Chapter 27 of the Laws of Zambia (HCR}. 2. The Rules of the Supreme Court, 1965, 1999 Edition (RSC). (Whitebook) 3. The Wills and Administration of Testate Estates Act, Chapter 60 of the Laws of Zambia. 4. The Intestate Succession Act, Chapter 59 of the Laws of Zambia. 5. The Companies Act No. 10 of 2017. 6 . The Court of Appeal Rules 5.1. No. 65 of 2016 7. The Supreme Court Amendment Rules No. 26 of 2012 Q.\�er Works: 1. Ha, 'sbury' S LOI/IS of E ,1 gJand 2 . Odgers on Civil Court Actions , Practice or.d Procedures 24'" £ dition .3, Atkins Courr Form.s 1.0 INTRODUCTION 1.1 This is an .ippeal against the Ruling of Malama J of the Family Division of the High Court, delivered at Lusaka, on 16 December 2021. • 1.2 It is noted that the Respondent, (the Applicant) in the court below, commenced an action against the Appellant (the Respondent) in the Court below on 21 September 2021. For the avoidance of doubt, and due to the term "respondent" in the Court below and in this Court referring to different people, and due to the similarity of initials of the parties to the dispute, we will refer to them by their first names, Ngoza the Applicant, and Sarah the Respondent, as they were in the court below. 1.3 Jt is not in dispute and the Court has noted that probate was granted to • five Registered Trustees 8th May of the Reeves Malambo Family Trust on 2018 namely, the Applicant Ngoza, Sara B. Komoto, Chilekwa Mat.sot.so, Leonard Malambo and Austin Malambo ("The Trustees") who were appointed personal representatives of the est.ite of the deceased, Reeves Malambo. A copy of this was produced marked 'SNMl' to the Originating process and suppo'ting Affidavit of 21 September 202 l . .13 2.0 BACKGROUND 2.1 On 21st September 2021, Ngoza commenced an action against Sarah by way of Originating Summons and Affidavit in Support (pages 37 to 55 of the Record) i claiming ng reliefs: the follow (i) An order that the Respondent being a signatory to the companies listed herein namely (SparePro, Autoforce, Shaftex, Jersey- Mall and • Homemark) pays the total amount of K322,038.13 (Three hundred and twenty-two thousand thirty-eight- Kwacha thirteen ngwee, as annual school fees at Chengelo Trust School for lANESHA MALAMBO and JAVDEN MALAMBO respectively. (ii) A Declaration that the Applicant and the children namely LANESHA MALAMBO and JAYDEN MAlAMBO are given an upkeep. (iii) That any Damages suffered as a result of the failure to pay for the children's school fees be borne by the Respondent. (iv) Any other relief the Court may deem fit under the circumstances herein. (v) Costs of and incidental to these proceedings . 2.2 On 20th October 2021, Sarah filed her opposing affidavit and skeleton arguments to the claims above (pages 60 to 140 of the Record). On the said date, her Advocates also caused to be filed an application for the determination of a question of law pursuant to Order 14A of the Rules of the Supreme Court of England (1965) (1999 Edition) 2 (pages 141 to 185 of the Record) ( the "Order 14A application"), The Order 14A app Ii cation raised the following issues: J4 (i) Whether the Applicant has demonstrated a sufficient cause of action to warrant this Honourable Court entertain this action; (ii) Whether the assets of a company constitute part of the estate of a deceased shareholder; (iii} Whether the Respondent not being a personal representative deceased can be sued under section of a 3 of the Intestate Act Succession . • 2.3 Followfng orders of the court below, Ngoza filed her affidavit in opposition and skeleton arguments on 5th November 2021 (pages 186 to 193 of the Record), and Sarah filed her reply and attendant arguments on th November 2021 (pages 196 to 221 of the Record). 3.0 DECISION OF THE COURT BELOW 3.1 The trfal Judge considered the questions of law posited in the Order 14A application founded on the submission that the matter was suitable for determinat without a trial on questions of law as the ion summarily (Ngoza's) Applicant's She affidavit did not reveal a cause of action. addressed this issue in three aspects: firstly, as it pertains to the duties of the personal representatives of the deceased' s estate. The Court noted • that probate was granted to five Registered Trustees of the Reeves Malambo Family Trust on 8th May 2018 namely, the Applicant Ngoza, Sara B. Komoto, Chilekwa Matsotso, Leonard Malambo and Austin Malambo ("The Trustees") who were appointed personal representatives of the deceased's estate. She was inv i ted to consider that Sarah, the Respondent, not being one of the named Trustees, is not a personal representative of the estate of the deceased and has no authority to JS distribute assets in the deceased's estate. cited, Based on authorities it was counsel's submission that the order sought being untenable at l.iw, made the action suitabie without for determination the need for a trial. In opposing this submission, Ngoza .irgued that the matter did disclose .i cause of action, and that as the applic.int, in her capacity as personal representative of the est.ite, she has power to have an account rendered to the Court from any person who may be in possession of property belonging to the estate. • 3.2 After analysis of the provisions of Order 14A as read with the explanatory note under paragraph 14A/2/3, and the diametrically opposed arguments of the Parties, the Court found that the question sought to be determined summarily, goes to the root and merits of the main matter and which the court below was not inclined to entertain at the interlocutory stage of the proceedings. 3. 3 The lower court thereafter con side red the argument anchored on the principle of separate legal personality and the submissions that Ngoza's • cl.iim for payment of school fees and upkeep directly from accounts of the named companies, is untenable based on the concept of legal personality being separate from its shareholders. The celebr.ited Salomon1 was cited along with other authorities in support of the case of Salomon vs principle. It w.is .ilso argued that the deceased, despite being a majority shareholder of the named companies, did not own any of the properties of the companies and upon his demise, his interest in the companies, devolved by oper.ition of law, to his est.ite, and as such the personal representatives have title over the estate including the shares in the named companies. The case of Macaura v Northern Assurance Co. J(, Limited2 was relied on in support of this argument. Reliance was placed on section 190 of the Companies Act\ and paragraph 7 {1) of Halsbury's Laws of England1 . It was further argued that as per section 159 of the Companies Act\ funds held in the accounts of the named companies, could only be disbursed by way of loans or dividends. 3 4 The court below in analyLing the argument of separate corporate personality, considered the opposing argument that some assets of the • deceased's estate be:ng in the hands of Sarah, she can be ordered to render an account. Again, the Court took the view that this issue could only be analysed after a full trial and could not be determined summarily and dismissed the second question raised under the Order 14A application. 3.5 Sarah also argued that the action by Ngoza is an abuse of court process, as the issues raised in this action are capable of determination under cause no. 2021/HPC/0284, an action commenced by her as Plaintifr and still subsisting in the commercial division of the High Court. The claims • were set out in the exhibit produced under cover of Sarah's supporting i affidav t and marked 'SNM2'. It was argued in opposition, that the action was not bad for multiplicity as the subject matter in th is cause was distinct. The trial court considered the reliefs set out by the two causes of action, one being for payment of school fees and upkeep, while the one in the commercial division relates to the removal of Sarah as director of some of the named companies and the purported irregular appointment of other named parties as directors thereto, Ngoza being one of them, and for injunctive reliefs as set out in the claims The court below re lying on the guidance of the Supreme Court in the case of lnterland Motors J7 , was of the view that the claims Limited in the two matters being distinct, arc capable of being determined parallel to each other and that this matter was not bad for abuse of court process. 3.6 The lower court in its ruling (pages 13 to 36 of the Record), dated 16 December 2021, dismissed the Order 14A application and now the subject of this appeal. 4.0 THE APPEAL • 4.1 Being dissatisfied with the Ruling of the lower Court, Sarah the Appellant, filed a Notice of Appeal and Memorandum of Appeal on 30 December 2021 advancing four grounds of appeal as follows: 1. The Court below erred in law and fact when it declined to make a determination of the 1H and 3rd points of law raised by the Appellant despite having all the information required to make the requisite determination of the points of law raised by the Appellant. 2. The Court below erred in law and fact when it held that the arguments being raised by the Appellant in relation to the 151 and 3rd points of law should be raised by way of a defence to the action, contrary to the requirements of Order 14 of • the White Book . 3. The Court below erred in law and fact when it declined to dismiss the action Respondents' for failure to disclose a cause of action despite clear e'✓idence showing that there is no cause of action disclosed against the Appellant. 4. The Court below erred in law and fact when it held that the action by the Respondent did not constitute abuse of court pror. P.ss dP..�pitP. thP. fact that the commercial division of the High Court was not only dealing with similar claims under cause Number 2021/HPC/0248 but had also rendered a ruling in relation to such claims. 5.0 APPELLANT'S ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 The Appellant's heads of arguments filed on 12 May 2022, have been duly considered and appreciated, alongside a questior, of law appearirig collectively its application oi for determination from pages 141 to 185 of the Record of Appeal (the Order 14A Application'). 6.0 RESPONDENT'S. ARGUMENTS OPPOSING THE APPEAL 6.1 The Responder-it purported to file its heads of argumer"\ts ' May on 3011 • 2023. 6.2 At the hearing of the appeal, the Appellant had filed its application to raise a preliminary issue pursuarit to Order X rule 9 (16) as read together with Order XIII rule S (2) of the Court of Appeal Rules Statutory lns�rumer,r No. 65 of 20166 (CAZ Rules). 6. J Counsel Nalishuwa relied service of the appellants record ori the supportirig affidavit arid argued that of appeal and heads of argument was • effected and ackr,owledged on 16 May 2022. He also argued that the responder-it ought to have filed its heads of argumerits within 30 days of the date thereof. Courisel Musorida, while concedirig its breach, argued that the rule being regulatory and not mandatory, irivited the Court to use its discretion to make ar, order that best suits the interest of justice. In this case, he argued, that the Court al low the respondent's should heads of argument arid in support, he relied or, the decision of the Supreme Court of Zambia in the case of Citibank Zambia Limitd vs Suhayl Dudhia4 , ir, which case the Supreme Court stated that where a statute does riot J() provide a sanction 16 argued that subrule for the breach, c1 Judge should not imply c1 breach. He the of the CAZ rules, does not specify consequences thc1t should attach to a breach of that rule. In response, Counsel for the appellant urged the Court to expunge the respondent's heads of arguments. It was his c1rgument that rules of court were meant to create a level playing field and that the respondent having conceded i:Jreach, did not even attempt to c1dvance any persuasive reasons for the breach. • 6.4 In our considered view, the respondent and hc1ving conceded breach, admitting that they ought to have sought leave, we had no hesitation in allowing the objection heads of and did order that the respondents argument be expunged off the record. As a consequence, Counsel for the respondent was not allowed to participate further in the appeal. 6. 5 We have taken the opportunity to address the issue canvassed in the preliminary oi:Jjection for guidance to litigc1nts, and to settle the position in this Court. We have i:Jeen guided in our research by the judgment of the • Supreme Court in the case of Pule Elias Mwila and Others vs Zambia State Insurance Corporation limited�, which appeal had occasion to trace the history of the amendment to Rule 58(5) of the Supreme Court Amendment Rules (SCR) Statutory Instrument No. 26 of 20127 which prescribes for the filing of the heads of arguments together with the record of appeal. The Supreme Court gu;ded that Rule 58 (S) was amended by the amendment Rules of 2012, in response to widespread complaints that delays were caused i:Jy endless for leave to applicc1tions JlO file heads of argument to out of time, causing immeasurable prejudice opposing parties as well as accounting for backlog of pending appeals. The Supreme Court reasoned that whilst not every rule of court where the word "shall' was used, connoted mandatory effect, Rule 58(5} of the SCR was mandatory and not merely regulatory or directory. The Court noted that a period of one year and nine months had elapsed since the filing of the record of appe.:il, and hc.:ids of argument. 6.6 In Jamas Milling Co Limited vs lmex International Limited 6 the Supreme • Court with reference to rules of procedure stressed as follows: ''While we agree that the rules of procedure are proper meant to facilitate administration of justice, cannot be made we do not accept that in all cases rules mandatory, and that their breach cannot be visited by unpleasant a sanctions against party who breaches them. . .it is not in the interest parties of justice that by their shortcomings should delay the quick disposal of cases and cause prejudice and inconvenience to other parties. " In July Danobo (T/A Juldan Motors) vs Chimsoro Farms Limited , the • Supreme Court with reference to an incomplete record of appeal before it, again emphas:zed that it would not condone breaches of the rules of court. The Court held that: "As afore-stated, failure to compile the record of appeal in the prescribed manner is visited by sanctions under Rule 68 (2) of the SCR. The sanction is that the appeal may be dismissed In this case, there is no doubt and os admitted by learned counsel for the appellant that the record of appeal is incomplete os the record of proceedings of the court below is missing. It follows that the record of appeal has not been prepared in the manner prescribed by the rules of this court. We must therefore invoke the provisions of Rule 68 ( 2) and dismiss this appeal." JI l 6.7 The Supreme Court in the Mwila 5 case held that Rule 58 (5) of the SCR was mandatory and not merely regulatory or directory and reiterated the position it had taken in the case of Mutantika and Another vs Chipungu where it held: ''Rule 58(5) as amended by srnrutary Instrument N a . 26 af 2012 is mandatory and not regulatory as it does not give the court discretionary power." 6.8 It is also trite and the law is settled in the jurisdiction that the duty to rectify the default lies with the defaulter and before the affected party • makes an application. The Supreme Court in the case of Standard Chartered Bank v Wisdom Chanda and Christopher Chanda stated at page 8: "We have stated in a plethora of coses that, any reason, no matter haw we// articulated, cannot of its own cure o defect. The Porty concerned must take out an appropriate application seeking to cure the defect; and that the court has no mandate to chose co ignore the defect and, of its own motion, proceed as if the defect never existed. " 6.9 We take the view that the arguments and rationale above, equally applies • to the respondent's heads of argument and not only the appellant's heads of argument, as was the subject of the decision in the Mwila 5 case considered by the Supreme Court. It is clear that Order.)( rule 9 (16) of the CAZ. Rules6 , is mandatory and not regulatory or l direct ve. It is trite that litigants default at their own peril since any rights available as of course to an non defaulter are usually jeopardized. In the case at hand, the respondent chose to file its heads of argument, one year and 14 days after being served with the appellant's record of appeal and heads of argument. It chose to do so without leave and with impunity. It is only J 12 natural that it suffered the fate it did in the face of breach of a mandatory rule. 6.10 Before we leave this issue, we wish to echo the warning issued by the Supreme Court in the case of Nkhuwa vs Lusaka albeit observation, made the following with reference to general rules of Tyre Services , when it procedure and timelines: "It is regrettob/e that in recent years Legal Practitioners in this Country hove • opproached the need to comply with the rules as to time with complete n o n ­ chalance. This Court has hod occasion in the past t o comment adversely on the attitude of /ego/ practitioners to c:omplionc:e with other rules of procedure bur it is time that a// /ego/ practitioners were mode to understand that where the rvles prescribe time within which steps must be taken these rules must be adhered to strictly and those practitioners who ignore them will do so at their own peril. " 7.0 DECISION OF THIS COURT 7.1 At the hearing of the appeal, Appellant's counsel opted to rely on their heads of argument filed before Court and briefly augmented their arguments • 7.2 We have carefully considered the grounds of appeal reproduced in paragraph 4.1 above; the Ruling being impugned and the arguments of the Appellant. We will begin by considering grounds 1 and 3 together as they are interrelated. 7.3 The essence of these two grounds of appeal was that the Appellant, (Sarah} raised two crucial points of law that were declined the despite Jl3 Court being possessed w i th the requisite information. For the sake of clarity, we recast the 111 and 3rd points of Jaw as follows: i. Wherher the Respondent has demonstrated a sufficient cause of oction to warrant this Honourable Court entertain this action; and ii Whether the Appellant not being o persono/ representative of the deceosed can be sued under section 3 of the Intestate Succession Act. 7.4 We have re-visited the Originat ing Summons as appearing on pages 37 to 38 of the Record of Appeal, which reveal that the Respondent Ngoza, is claiming the costs of school fees, upkeep and damages for failure to pay school fees against the Appellant, Sarah. We have analysed this claim in • the face of the grant of Probate dated 8th May 2018 and appearing at various places in the Record of Appeal and note that the Appellant Sarah, is not a personal representative of the estate of the deceased. This was not disputed. The Appellant has drawn our attention to the provisions of Order 18 rule 19 of the White party fails to disclose a reasonable cause of action or discloses a cause of Book2 and has urged us to find that where a • action that is scandalous, frivolous or vexatious, the court has wide dismiss discretion to the matter. the High Court Rules1 supports It was also argued that Order Ill Rule 2 of the argument above and reliance was also placed on the decision Mambwe and Others of the Supreme Court in the case of Charles Limited Properties vs Mpelembe • 7.5 We have equally considered the arguments tendered in the court below, by the Respondent Ngoza in opposing this argument, by which she has argued that the Appellant, Sarah, being a beneficiary of Estate, did obtain an injunction against the Respondent, Ngoza and other Administrators and referred to her exhibit 189/190 of the Record of Appeal and must render an account. marked 'NSMl' which appears She has at pages also countered that having commenced the action as a litigant in person and having failed to clearly outline the issues against Sarah in the i nating process, orig and having engaged counsel, the matter is for rendering an account regarding the properties which came into Sarah's hands. • 7.6 In analyzing the question of failure to disclose a cause of action, looked at the explanatory note in the White Book 15/1/2 for the meaning of "cause of action". The note provides as we have 2 under paragraph follows: "The words 'cause of action' comprise every fact (though not every piece of evidence) which it would be necessary for tile plaintiff to prove, if traversed, to support his right to the judgment of tile Court." We have also been referred to the case of Letang v Cooper , cited by us in our recent decision in the case of Graduare Property Development Limited vs Emporium Fresh Foods Ltd T/A Food lovers Markee 3 where the term cause of action was as: defined 'simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person." • 7.7 On the 3'd point of law, it was contended on behalf of Sarah, that not being a personal representative, of the Estate, she cannot be sued under section 3 of the Intestate Succession • On this issue, reference was Act4 made to the decision of the Supreme Court in the case of Embassy Supermarket v Union Bank (in liquidation) wherein the Court stated: J 15 ''where a statute places a duty on an individual or officer, no other person shall perform the duty unless it is so provided for under the same law." 7.8 We have already noted in paragraph 7.4 above that Sarah was not a 'personal representative' of the Estate. Paragraph 1.3 above, names the five appointed registered trustees who were appointed as the personal representative of the Estate. Can it then be argued based on the Embassy Supermarket 14 case, that there is a duty on Sarah to render an account? On the aspect of separate and distinct corporate personality, is Sarah as • director, in the named companies, liable to render an account to Ngoza, who is one of the five named personal We representative of the Estate? have also looked at the provisions 45 (1) of the Wills and Administration of Estates of section Act3 which provides as follows: "The duties and powers of a personal representative shall b e - a . to pay the debts and funeral expenses of the deceased and pay estate duty if payable; b. if the deceased left a valid will, the distribution of the property disposed of by the will in accordance with its provisions or an order of court made under section twenty; c. when required to do so by the court, either on the application of an interested party • or on its own motion- (i) to produce on oath in court the full inventory of the estate of the deceased; and (ii) to render to the court an account of the administration of the estate. 7.9 The trial court in analyzing the contested evidence of the parties at page Rl 7 stated as follows: "My view is fortified by some of the averments in the Respondent's to affidavit in reply, the Applicant's opposing affidavit in the current application, the gist of which is that the beneficiaries of the estate cannot benefit from assets that do not form part of the . I I 6 deceased's estate; and that the Applicant is not the surviving spouse of the deceased; and that part of the estate is being managed by named property A{{ these consultant. are matters that cannot be determined summarily by way of a P. I. My further view is that the arguments raised by the Respondent would be better suited to be raised as part of the defence in the main matter and not in the form of a P. I." 7.10 We were also referred to the learned Authors of Odgers on Civil Court Actions 2 at page 207 thereof, which states as follows: "On an application based on this ground alone, no evidence is admissible. The application is analogous to a demurrer and the court can look only at the pleadings • and particulars, power is exercisable not at any affidavit. The court's at any stage of the proceedings, but it should only strike out a pleading in "plain and obvious cases' and where no reasonable amendment would cure the defect." In Drummond Jackson v British Medical Association 15 the court stated as follows: "The summary power to strike out a pleading for failure to disclose cause a reasonable of action was one which should be exercised only in plain and obvious cases, where the alleged cause of action, on consideration only of the a{{eqations in the pleading. was certain to fail." (underlining is ours for emphasis) lt has also been argued that although the Explanatory Note 18/19/3 of the White Book2 provides that, though the order may be made at any • stage of the proceedings, the application should always be made promptly. In casu, the application was made promptly on 2011: October 2021. 7.11 We are of the settled view and the law is clear that it is an administrator of an estate that may be compelled by the court or on application by an interested party, to render an account. To support a our position further, beneficiary, not being an administrator, to an cannot render an account .117 • \ estate to which they have not been appointed to administer. We are fortified in arriving at this finding that had the learned trial judge in the court below, examined the reliefs sought and the law as cited, without placing reliance on contested affidavit evidence, she would have come to the only conclusion supported by the authorities, that there was no cause of action disclosed against the Appellant, and Sarah in the court below, certainly none that would be disclosed by producing evidence at full trial. Ngoza in her own arguments in opposition, conceded that she had commenced the action in person, and subsequently having engaged • counsel, her action was in fact for Sarah to render This is an an account. argument that was neither pleaded nor sought as a relief. It is trite that Parties cannot chop and change the cause of action seeking different reliefs from the ones set out in their pleadings. find merit We accordingly in grounds 1 and 3 of the appeal and uphold the same. 7.12 We now turn our attention to ground 2 of the appeal which is produced at paragraph 4.1 above. The Appellant has argued that the court erred in law and fact when it held that the arguments raised to the 1st in relation • and 3rd points of law should be raised by way of a defence. However, the appellant has argued that the essence of an Order 14A application, allows the Court to determine any question of law or construction of any document without a full trial where it appears to the Court that such determination will finally determine the proceedings or an issue therein. Order 14A rule 1(1) provides as follows:- " The Court moy upon the opplicotion of o porty or of its own motion determine ony question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that:- (a) such question is suitable for determination without Jl8 a full trial of the action; (b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein; and (c) Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.' 7.13 It was argued that, there are requirements that need to be met before an • order 14A application can be pursued. These were discussed extensively by the Supreme Court in the case of lndeni Petroleum Co Ltd vs Refinery Kafco Oil Lilited, Andrew Bungoni, Silas Mumba ad Emmanuel Shikaputo , and were referred to as follows: i. The defendant must have given notice defend. of intention to This requirement was met by the Respondent Sarah having filed an Affidavit in opposition on 20th October to the 2021 and which according lndeni case constitutes notice of intention to defend. We concur with this submission. • ii. The question of law or construction is suitable for determination without a full trial of the action. It has been argued and the facts show that the Appellant, Sarah was not a personal representative and accordingly the only issue for determination was a point of law relating to whether or not Ngoza's claim is tenable against a person who is not a personal representative. We equally agree with this submission. It has not been challenged that Sarah is not a personal representative of the estate of the deceased. Jl9 • I iii. Such determination will be final as to the entire cause or matter or any claim or issue therein. In reference to this, the learned authors of Atkins Court Forms3 , with respect to Order 14A have guided that the object of the Order is to seek finality at an interlocutory stage, to terminate the whole action or some claim or issue contained in the action. The finality of any order made is subject to appeal. It has accordingly been argued that the determination • of whether or not a person can make a claim against someone who is not a personal representative to render an account would bring finality to the matter at hand has equally been satisfied. We agree with this line of argument and as discussed above, Sarah not being a personal representative, render cannot an account. iv. The parties had an opportunity of being heard on the question of law or have consented to an order or judgment being made on such determination. It was also a fact that both parties had the opportunity to be heard following the mounting of the Order 14A applicat ion. The Appellant has argued that the Ruling of the lower court in which it declined to determine the matter at an interlocutory stage was flawed in that the • essence of Order 14A of the White Book is that it gives the Court jurisdiction to determine a matter on a point of law at any stage of the proceedings without the need for a full trial. We accept this line of submission and are of the considered view that this matter was amenable to be determined as an Order 14A application. J20 ' .. 7.14 We are also alive to the caution noted by the Supreme Court in the case of Teklemicael Mengstab & Anr vs Ubuchinga limited Investments where the Court expressed misgivings issues at many preliminary being raised so early, as they pose the danger of inviting the court to delve into issues which ordinarily it can only do after making findings of fact. However, on the facts at hand, the Appellant Sarah, raised 3 questions of law, on matters that were settled before the Court, on facts that were not disputed and an examination of those would have necessarily determined the matter without the need for trial. • 7.15 We are equally alive to the dangers and the of such early challenge caution issued by the Supreme Court in the case of Concrete Pipes & Products Limited vs Kingsley Kabimba & Anr18 where the Supreme Court noted that the preliminary issues raised, being so integral, could properly be raised in the main cause. However, in the context in casu, and based on our reasoning above, we have no hesitation in accepting the Appellant's line of submission and find that all criteria for the successful presentation of the Order 14A application having the lower been fulfilled, court erred in its finding that the matter cannot be determined in finality • without a full trial. Ground 3 therefore is accordingly upheld. 7.16 With reference to Ground 4 on the issue of abuse of process, this Court has noted a litany of litigation touching on similar issues as the ones in casu. There appears to have been an action before the late Hon J Chitabo under cause No. 2017/HP/0421. There is also reference to some mediation settlement order in an action that is not cited, and another action was commenced in the Commercial Division under Cause No. 2021/HPC/0284. Cardinal is a Ruling to the issue under consideration by J21 " Hon J Mwa/e on an application made by the Plaintiff in that case, (Sarah), to discharge the exparte mandatory Order of injunction on 8th granted October 2021. In his Ruling, the Hon Judge in the court below stated as follows: (pages 227-230 of the Record of Appeal) "As I see it, the central issue raised by this application is whether or not the ex parte order of mandatory injunction should have been granted in favor of the 1st, 4th, 5th. 6th and fh defendants against the Plaintiff especially in light of the fact the that she is not personal representative of the late Reeves Malambo and by extension, whether or not the •said mandatory ..... order should be discharged Relative to the present case, it is • trite that only the duly appointed personal representative of the deceased has the mandate to administer and manage the affairs of the estate and any other person purporting to do so would be intermeddling in the estate. The Plaintiff has stated that she is not the personal representative of the deceased and this fact has been confirmed by the 3'd Defendant (Ngoza), who herself is one of the Trustees managing the estate. I am inclined to agree with the Plaintiffs submission that compelling her to pay upkeep and school fees for the beneficiaries of the estate would be tantamount to sanctioning her commission of an offence under section 65 {1) of the Wills and Administration of Testate Estates Act .... .ln the premises, I that at do not feel a high degree of assurance the trial it will appear that the injunction ·was rightly granted; I am of the considered view that sustaining the ex parte order of mandatory injunction against the Plaintiff • discharged forthwith." carries a greater risk of injustice if it turns out that it was wrongly issued. Accordingly, the said ex parte order of mandatory injunction against the Plaintiff is hereby 7.17 We have noted the reasoning and the finding by the court below, that the causes are distinct, which on the face of the actions they and the reliefs seek, may be considered to be distinct, but we are of the considered view that the court below fell into error by attempting to distinguish the reliefs sought in the action before the Commercial division against those in the action before the Family division. The Court below failed to consider that J22 ' ' ,. the Respondent Ngoza, had sought the same relief, being for the payment of school fees and upkeep in the form of a mandatory injunction in the Commercial Court and which reliefs in her she was concurrently seeking action in the family court. It is trite that there is only one High Court of Zambia, creating different divisions for convenience only. Parties seeking the same relief from different courts and different adjudicators has the potential of causing embarrassment and bringing of the administration justice into disrepute. It was clear from the Ruling above, that Hon J • Mwale had granted the ex parte mandatory order to pay the school fees and upkeep, which order was discharged upon due examination of the law and the facts of the matter. In our considered pinion, to then pursue the same application, seeking the same reliefs, in a new cause of action, before another division of the High Court, can only be considered an abuse of process. 7.18 We have taken into consideration the facts of this case, the reliefs sought, and the Ruling of the Commercial Court as quoted above, which addressed the same issue between the parties and agree with the • Appellant that the lower court ought to have dismissed for the action being an abuse of process. In our considered view, parties have an obligation to bring all issues in a particular one court matter before without resorting to forum shopping in other courts to seek favorable rulings by scattering across litigation the divisions of the High Court. This position was echoed by the Supreme Court in the case of Beatrice Muimui vs Silvia Chanda19 . We are comforted in our finding by the words of the Supreme Court in the case of BP Zambia Pie vs lnterland Motors J23 ... • • Lim ited3 when it frowned upon abuse of court process by litigants in the following words: "A party in dispute with another over a particular subject should not be allowed to deploy his grievances piecemeal in scattered litigation and keep on hauling the same opponent over the some subject matter before various courts. The administration of justice would be brought into disrepute if a party managed to get conflicting decisions or decisions which undermine each other from two or more different judges over the " same subject matter. 7.19 We accordingly uphold ground 4 of the appeal. The net result is that the appeal is successful, and we set aside the Ruling of the Court below and dismiss the matter before the Family court. 8.0 CONCLUSION 8.1 The appeal having been successful we dismiss the matter before the family court and award costs to the a pqllant in this court and the court below. Same to be taxed in default of agrJement. --- � • COURT OF APPEAL JUDGE BETTY M. MAJULA ABHA N. PATEL SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE .124