Southern Africa Trade Limited v Hawkwood Property Investment Limited (Appeal No. 179/2009) [2013] ZMSC 88 (29 May 2013)

.. Jl IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 179/2009 BETWEEN: SOUTHERN AFRICA TRADE LIMITED APPELLANT AND HAWKWOOD PROPERTY INVESTMENT LIMITED RESPONDENT Coram: Mambilima, DCJ, Chibomba and Wanki JJS. On 13th January, 2011 and on 29th May 2013 For the Appellant: For the Respondent: Mr. R. Mainza of R. Mainza & Company Mr. M. Sikaulu of Sikaulu Mupeso & Company JUDGMENT Chibomba, JS. Delivered the Judgment of the Court. Cases and other materials referred to: - 1. 2. 3. 4. 5. 6. Odgers' Principles of Pleadings and Practice in Civil Action, 22 nd Edition, Pages 170 and 171 The Attorney-General vs E. B. Jones Machinists Limited {SCZI Judgment No. 26 of Watson vs Murray & Co. {19551 1 All ER 350 Moore vs Lambeth County Court Registrar {No.21 (19701 1 All ER 980 Development Bank of Zambia vs Sunvest Limited {19971 ZR 10. Wilson Masauso Zulu vs Avondale Housing Project Limited { 19821 ZR 172. Legislation referred to: 1. 2. The Rules of the Supreme Court of England { 19991 Edition. The High Court Act, Chapter 27 of the Laws of Zambia. • J2 The Appellant appeals against the Judgment of the High Court in which the learned Judge held that the Appellant's action was a multiplicity of actions and consequently, he dismissed it. In the action leading to this appeal, the Appellant, by Writ of Summons, sought inter alia, damages for wrongful eviction, conversion, delivery of some assorted alcoholic and non alcoholic - drinks or their value, delivery of furniture equipment and fittings or their value, damages for loss of business, interest and costs. The Respondent filed a Conditional Memorandum of Appearance and an application to Strike Out the Writ of Summons and Statement of Claim and to dismiss the action pursuant to Order 18, Rule 19 (1) (a) and (d) of the Rules of the Supreme Court (RSC), 1999 Edition. An Affidavit in Support of this application was filed. The gist of this Affidavit is that the Writ of Summons and Statement of Claim do not disclose any cause of action against the Defendant and that the action was a multiplicity of actions as the Plaintiff had commenced an earlier action by Originating Notice of Motion claiming for an Order that the Defendant be compelled to J3 honour a verbal agreement in which it undertook to execute a formal lease. That the High Court dismissed the action and that the Plaintiff then appealed to the Supreme Court. The Appellant opposed this application. The gist of the Affidavit in opposition is that contrary to the allegation 1n the Affidavit in Support, the Writ of Summons and Statement of Claim disclose a cause of action against the Defendant and that it is incorrect to say that this action amounts to multiplicity of actions in that the cause of action in the present case arose on the 16th day of December, 2008 when the Defendant erroneously issued a Writ of Possession/ Fifa against the Plaintiff without obtaining leave of Court and in total breach of the Supreme Court Order staying execution of the High Court Judgment/Order. That the Court Bailiffs evicted the Plaintiff from Shop in question and seized various movable property. That in his Judgment, Judge M. M. Imasiku {in the earlier cause) , neither granted the Defendant an order for possession nor awarded the Defendant the sums of money endorsed on the Writ of Possession but that notwithstanding, the Defendant proceeded to J4 issue a Writ of Possession/ Fifa. And that his application to set aside the Writ of Possession/Fifa for irregularity, which Justice M. M. Imasiku granted. That as a consequence of the wrongful eviction, the Plaintiff suffered loss and damage as claimed in the Statement of Claim. And that this Honourable Court will note from the Order dated 3 rd April, 2009, that the eviction and seizure of the Plaintiff's property by Writ of Possession/Fifa was not authorized by the Court and hence, the present action in which the Plaintiff is seeking special and general damages for wrongful eviction and for conversion. And that therefore, the Appeal before this Court has no bearing on the present action as that action was intended to deal with the Judgment of Mr. Justice M. M. Imasiku dated 4 th December, 2008 while the present action is intended to recover special and general damages occasioned on the Plaintiff by the Defendant pursuant to a Writ of Possession/ Fifa which was set aside by the Court. And that it is clear that there is no multiplicity of actions as the Appeal and this Action are not capable of being consolidated. JS After hearing both parties , the learned Judge 1n the Court below came to the conclusion that the later action amounted to multiplicity of actions and he dismissed it. Dissatisfied with this decision , the Appellant appealed to this Court advancing five grounds of appeal as follows:- "1. The Court below misdirected itself in law when it held that the Plaintiff should have along with applying to set aside the writ of possession/ fl.fa indicated to the Court under cause number 2008/HPC/0311 the damages that it had suffered arising from the alleged wrongful execution. 2. The Court below misdirected itself in law when it held that the Plaintiff should have laid before the Honourable Court details of the damages suffered and urged the Court to determine whether or not it was entitled to compensation by way of an award of damages. 3. The Court below misdirected itself in law and in fact when it held that the fact that the cause of action arose subsequent to the commencement of the action under cause number 2008/HPC/0311 is irrelevant because the wrong complained of arose in that action. e 4. The Court below misdirected itself in law and in fact when it held that the present case was a multiplicity of actions. 5. The Court below misdirected itself in law when it failed to adjudicate upon the question whether or not the statement of claim disclosed a cause of action." The learned Counsel for the Appellant, Mr. Mainza relied on the Appellant's Heads of Argument in which Grounds 1 and 2 were argued together. It was submitted that the Court below misdirected .. JG itself in law when it held that the Appellant should have along with the application to set aside the Writ of Possession/Fifa, applied for damages sought under Cause No. 2008/HPC/0311 arising from the alleged wrongful execution. Further, that the Judge also misdirected himself in law when he held that the Appellant should have laid before the Court details of damages suffered and urged the Court to determine whether or not it was entitled to compensation by way of damages. It was submitted that on 14 th August 2008, the Appellant commenced the action by Originating Notice of Motion which was supported by two affidavits and that the Respondent also filed an Affidavit in opposition and that after hearing both parties on 4 th December 2008 , the learned Judge made the fallowing Order: - "Having heard the Applicant Respondent, and having read the Affidavits before me. in person and Counsel for the I agree with counsel for the Respondent that there is no contract between the Applicant and the Respondent which this Court can compel the Respondent to specifically perform. The Applicant says by a verbal agreement the Respondent promised to send a lease Agreement. I agree with Counsel for the Respondent that until a Lease is sent there is no Lease Agreement between the Parties. • . . J7 Finally, I see no cause of Action which has been disclosed in the Applicant's NOTICE OF MOTION. No Court can force parties to enter into a Lease Agreement if one of them is unwilling to do so ... " It was submitted that in making this Order, the learned Judge did not enter Judgment in favour of the Respondent for possession of the shop in question since there was no Counterclaim for possession. That however, on 16th December, 2008, the Respondent wrongful issued a Writ of Possession resulting into the Appellant being evicted from the said shop and hence the Appellant filed an application to set aside the Writ of Possession for irregularity which the Court below granted. The Order is couched as fallows: - "Having heard Counsel for the parties and having read the affidavits before me and the Supreme Court Order, I am satisfied that the successful party before me did not ask for leave to issue a Writ of Possession. For that reason only the Writ of Possession is Set Aside. This does not mean that the Applicant has been given liberty to possession of Shop No. 11 as he has no right to do so .... " It was submitted that after this Ruling, the Appellant commenced (the later cause) an action by Writ of Summons under Cause No. 2009/HP/0546, for damages for wrongful eviction and conversion. The Respondent then took out Summons to strike out the Writ of Summons and Statement of Claim on the grounds that JS this did not disclose a cause of action and that the action was a multiplicity of actions. After hearing this application, the learned Judge in the Court below ruled as follows: - "The Plaintiff should have, along with applying to set aside the writ of possession/ fifa indicated to the Court under cause number 2008/HPC/0311 the damages that it had suffered arising from the alleged wrongful execution. In doing so, the Plaintiff should have laid before the Honourable Court details of the damages suffered and urged the Court to determine whether or not it is entitled to compensation by way of an award of damages. This avenue was open to the Plaintiff especially that, there was endorsement in the originating notice of motion cause number 2008 / HPC / 0311, produced as exhibit "MLS 1" to the affidavit in support for "any other relief the Court may deem fit." filed under It was submitted that the above holding by the trial Judge is a serious misdirection as he held that the Appellant should have along with applying to set aside the Writ of Possession/Fifa indicated to the Court under the earlier cause, the damages claimed e under the later cause. It was contended that an action for damages should always be commenced by Writ of Summons and not by interlocutory applications. As authority, Order 7 Rule 1, of the High Court Rules was cited. However, Order 7 Rule 1 relates to endorsement of address. The correct Rule is Order 6 Rule 1 sub Rules 1 and 2 which provide: - "1. Except as otherwise provided by any written law or these Rules every action in the High Court shall be commenced by ... J9 Writ of Summons endorsed and accompanied by a statement of claim. full 2. Any matter which under any written law or these Rules may be disposed of in chambers shall be commenced by an Originating summons." It was submitted that the law and the Rules in the High Court Rules and the Rules of Supreme Court of England, 1999 Edition, do not provide for such a procedure as suggested by the Judge as a claim for damages cannot be disposed off in chambers by way of an interlocutory application. Odgers' Principles of Pleadings and Practice in Civil Action 1 was cited. It was further contended that the Appellant's right to sue for damages only accrued on 3 r d April, 2009 when the Writ of Possession was set aside for irregularity. Hence, it is inconceivable how the Appellant could have given details of the damages suffered in the absence of an action for damages commenced by Writ of Summons and Statement of claim. Therefore, that Ground 1 and 2 of this appeal have merit. In support of Ground 3, it was contended that the learned Judge in the Court below seriously misdirected himself when he held that the fact that the later cause arose subsequent to the JlO commencement of No. 2008/HPC/0311 1s irrelevant. It was submitted that the learned Judge misapprehended the fact that the Respondent only became liable in damages when it evicted the Appellant from the shop without leave of Court purs uant to a Writ of Possession. In support of his contention, the case of The Attorney General vs E. B. Jones Machinists Limited2 was cited in which we held that: - "In every case of execution, all steps which may legally be taken therein shall be taken on the demand of the party who issued such execution and such party shall be liable for any damage arising from any irregular proceeding taken at his instance." The English cases of "Watson vs Murray & Company3 and the case Moore vs Lambeth County Court Registrar4 were cited. It was contended these are to the same effect. Therefore, that it was the setting aside of Writ of Possession/Fifa for irregularity that rendered the Respondent liable to damages. In support of the 4 th Ground of appeal, it was contended that the later cause did not amount to a multiplicity of actions as erroneously held by the trial Judge. That this Court will note from cause No. 2008/HPC/0311 , that it was commenced on 4 th August, 2008 and that the reliefs sought were inter alia, for:- " Jll "An order that the Respondents (now Defendant) DO BE compelled to honour the verbal Agreement in which it undertook to execute the Formal lease the basis upon which rentals for October to December 2007 and January to March 2008 were effected and received by the Respondents" and "For a further Order that the Plaintiff DO BE allowed to liquidate the cumulative rental arrears in four equal instalments for the period April to August 2008 in the sum of K28,501,200.00 which instalments shall include rent for and service charge effective 31 st August 2008." That under cause No. 2009/HP/0546 which was commenced on 4 th May 2009 after the Writ of Possession/Fifa was set aside, 1s for damages for wrongful eviction, damages for conversion, etc. It was contended that the subject matters of the causes are different and that the only time a matter may be dismissed for multiplicity of actions is when the Plaintiff commences a fresh action over the same subject matter while another action is pending based on the same subject matter as was the case in Development Bank of Zambia and KPMG Peat Marwick vs Sunvest Limited and Sun Pharmaceuticals Limited5 . It was further submitted that it was practically impossible that the relief sought under the later cause could have been addressed under the earlier cause as the two causes of action arose on different dates. Therefore, that the only recourse available to the Appellant was to commence a fresh action for damages. • ,.___ J12 In support of Ground 5 , it was contended that the learned Judge misdirected himself as he did not adjudicate on the question whether or not the statement of claim disclosed a ca use of action. In support of this contention, the case of Wilson Masauso Zulu vs Avondale Housing Project Limited6 was cited in which we held that the trial Court has a duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality . Paragraph 6 of the Affidavit in Support of the Summons to Strike Out the Writ of Summons and the Statement of Claim was cited . It was argued that the learned Judge held that contrary to the above allegation, the Writ of Summons and Statement of Claim do disclose a cause of action against the Defendant. It was argued that the holding by the learned Judge that since that this matter amounts to a multiplicity of actions , he would not determine the issue raised as to whether or not there was a cause of action in this matter was a misdirection as the failure to adjudicate on this issue is contrary to the case of Wilson Masauso Zulu6 cited • J13 • above. We were, accordingly, urged to quash the Ruling rendered by the Court below with costs. The learned Counsel for the Respondent, Mr. Sikaulu, also relied on the Respondent's Heads of Argument filed in opposing this appeal. Grounds 1, 2, 3 and 4 were responded to together on ground that Grounds 1 and 2 are almost identical while Grounds 3 and 4 are more or less inter-twined with Grounds 1 and 2 . It was submitted that the learned Judge in the Court below was on firm ground when he held that the Appellant ought to have indicated in the earlier cause the damages suffered arising from the alleged wrongful execution. That this is so to avoid a multiplicity of actions and hence , the Court below was on firm ground when it held that the current case was a multiplicity of actions. It was submitted that the later case was a multiplicity of actions as the action was based on a claim for wrongful eviction from the property in question. And that the Court had to determine whether or not the Appellant was in lawfully occupation of the said property which was an issue under the earlier cause and that the learned Judge held that:- J14 "Clearly, the Plaintiff in this matter is pursuing other steps whilst the issue of its leasing of the property in dispute is pending the determination in the Supreme Court whose outcome is more than likely to have bearing on these proceedings." Therefore, that the Court below was on firm ground when it held that although the two causes appear different, they arose from the same set of facts as shown on page 11 of the Record of Appeal, where it states that:- "The key fact in dispute which was subject to determination in both matters was whether or not the Appellant was in lawful occupation of Shop No. 1 lB, Chindo Road, Kabulonga, Lusaka. The Appellant could not be entitled to damages under the second action unless it could prove that it was in lawful occupation of the property. It is trite law that a trespasser cannot be injured upon being evicted3 • We submit that the execution of the Writ of Possession without leave, in itself, does not give rise to a cause for damages as the Appellant must prove lawful occupation. The Court in its order did state that the Applicant had no right to possession of Shop No 1 lB and therefore merely set aside the Writ of Possession without allowing the Applicant to return onto the premises. The cases of Williams v. Williams and Nathan (1937 2 ALL ER 559 and Barclays Bank Limited v. Roberts (1954) 3 All ER 107 support the Respondent's position that the alleged wrongful execution cannot in itself hold the respondent liable to damages." It was contended that in the case of Development Bank of Zambia vs Sun vest Limited5 , this Court stated that: - "We also disapprove of parties commencing a multiplicity of procedures and proceedings and indeed a multiplicity of actions over the same subject matter. The objection raised by the borrowers in this action to the bank pursuing the remedy of self redress in this action, that an action was pending, applies with equal force to the whole idea of the borrowers commencing a fresh action when there is already another one pending in the court with the result that various courts may end up making various • J15 conflicting and contradictory decisions because the parties have started another action in the courts .... We also disapprove of the multiplicity of actions between the same parties involving various issues proposed to be raised in the new action which as we said we disapprove of." It was submitted that the Court below, was therefore , on firm ground when it held that the fact that the cause arose subsequent to the commencement of the action under cause No. • 2008/HPC/0311 is irrelevant as the wrong complained of arose from the same Act. In support thereof, Order 20 Rule 8 (8) of the Rules of the Supreme Court was cited which provides for amendment to allow new claims. It was argued tha t this applies where the claim arises substantially from the same facts as was in the current case . In response to Ground 5 , it was contended that the Court below was on firm ground in not determining the iss ue whether or not there was a cause of action as the matter was dismissed on account of multiplicity of actions thereby rendering the issue irrelevant. We have seriously considered this appeal together with the arguments in the respective Heads of Arguments , the authorities J16 • cited therein and the Ruling by the Court below. This appeal raised the question whether the second action filed by the Appellant amounted to a multiplicity of actions. As submitted by the learned Counsel for the Respondent, Grounds 1 and 2 are almost the same while Grounds 3 and 4 are intertwined with Grounds 1 and 2. We shall, therefore , deal with all the issues raised under Grounds 1, 2, 3 and 4 together . To fully resolve the issues raised, the facts relating to this appeal must be borne in mind. These are that there was an earlier cause of action decided by the first Judge which we have referred to as to the earlier cause. This earlier cause culminated into the first Judge setting aside the Writ of Possession/Fifa that had been issued by the Respondent but the Judge refused to grant a stay. The Appellant filed an appeal to the Supreme Court against the refusal to stay. While this appeal was pending in the Supreme Court, the Appellant commenced another action this time, by Writ of Summons which went before the second Judge of the High Court. The Respondent then filed a Conditional Memorandum of Appearance and applied to dismiss the second action for 't ' I J17 multiplicity of actions and to set aside the Writ of Summons and Statement of Claim for failure to disclose a cause of action. In a later cause, the Appellant had claimed for damages arising out of wrongful seizure and conversion of property when the Appellant was evicted from the shop in question. The learned second Judge agreed with the Respondent that the Appellant's action amounted to a multiplicity of actions and he dismissed the whole action on ground that the claims arose from the same facts as the earlier • cause. The question before us is, did the learned Judge misdirect himself in finding that the second action amounted to multiplicity of actions? The answer is "no". We entirely agree that the Appellant ought to have applied to amend the earlier cause once the cause of action in the later cause arose. Order 20 Rule 8 (8) of the Rules of the Supreme Court is specific on this and allows a party in similar circumstances as the Appellant found itself in to apply to amend the earlier case so that the claim that arose later is dealt with in the earlier cause. J18 It is, therefore , our firm view that the learned Judge was on firm ground when he ruled that the fact that the Appellant had commenced the earlier action by Originating Notice of Motion was no barr to the utilization of Order 20 Rule 8 (8) quoted above. We also take note of the fact that the Rules of Court allow the Court to deem an action that is commenced by Originating Notice of Motion to have been commenced by Writ of Summons should need arise. Therefore, the Appellant cannot hide behind the claim that since the later action was for damages, the same could not have been dealt with in the earlier action commenced by Originating Notice of Motion. We do not also agree that an action begun by Originating Notice of Motion is an interlocutory application simply because it is heard in Chambers. An Originating Notice of Motion is one of the modes of commencement of Court actions. In fact, an interlocutory application is an application within the main action whether begun by Originating Notice of Motion or any other mode. Therefore, the suggestion by the Appellant that the later cause could not have been determined in Chambers by way of interlocutory application is a misdirection and is incorrect. The • J19 learned trial Judge was , therefore, on firm ground when he ruled that the Appellant should have along with applying to set aside the writ of possession/fifa indicated to the Court under cause number 2008 / HPC / 0311 the damages that it had suffered arising from the alleged wrongful execution. The Rules of Court cited above do allow for an amendment to bring in fresh claims as provided in Order 20 / 8 / 8 of the Rules of the Supreme Court. We also find that the learned trial Judge was on firm ground when h e held that the later action was a multiplicity of actions. As authority, we refer to our decision in Development Bank of Zambia case cited above. We find no merit in grounds 1, 2, 3 and 4 of this appeal. With respect to Ground 5 which raises the question whether the learned Judge misdirected himself by not adjudicating on the question whether or not the Writ of Summons and the Statement of Claim disclosed a cause of action, we wish to state that the learned Judge was on firm ground as the issue had become irrelevant once he ruled that the Appellant's second action amounted to a multiplicity of actions and dismissed it. We see no merit in Ground 5 as well. i J20 All the five grounds of appeal having failed on ground of want of merit, the sum total is that this appeal has failed . The same is dismissed with costs to be agreed and in default thereof, to be taxed. " t''il--------------- ~ --------=----- I. C. Mambilima DEPUTY CHIEF JUSTICE H . Chibomba SUPREME COURT JUDGE ~ :~~·········· SUPREME COURT JUDGE