Supa Baking Company Ltd v Pendwe and Ors (SCZ Appeal 31 of 2004) [2005] ZMSC 28 (6 December 2005)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO.31/2004 AT NDOLA (Civil Jurisdiction) BETWEEN: SUPA BAKING COMPANY LIMITED 1st APPELLANT (In liquidation) AND PHILLEMON JONATHAN PENDWE 2nd APPELLANT AND REV. JOEL CHISANGA AND INKSON CHULU AND 1st RESPONDENT 2nd RESPONDENT S. P. MULENGA ASSOCIATES 3rd RESPONDENT AND ZAMBIA PRIVATISATION AGENCY 4th RESPONDENT Coram: Chibesakunda, Mushabati, ane^Munthali Ag. JS. At Ndola on 7th September, 2005 and 6th December, 2005 For the 1st Appellant: Nil For the 2nd Appellant: M. G. Masengu of Michael Masengu and Company For the 1st, 2nd and 3rd Respondents: Nil For the 4th Respondent: M. Mwandenga - Legal Counsel J 3 This appeal has been argued on a point of law in that the action was commenced under a wrong procedure or provision of the law because the 2nd respondent lawfully occupied the said house by virtue of his employment. Mr. Masengu argued at length and the gist of his arguments were to the effect that the wrong procedure that was adopted in commencing this action did not render the proceedings null and void in that the parties agreed to consider the action as having been begun by writ of summons. Mr. Mwandenga on the other hand argued that the proceedings were irregular because a wrong procedure was used in commencing the said action and he urged the court to dismiss the appeal. We are not going to delve into the merits and demerits of the case but we shall confine our discussion on whether the commencement of these proceedings was under a wrong procedure and if so whether they were rendered a nullity. Both counsel are all agreeable that a wrong procedure was used here. So what is the effect of that? It is trite law that where a special procedure for commencing an action is provided for under an enactment or rules of procedure then that procedure must be adhered to. Depending on the stage at which the proceedings have reached, the defect may be corrected or may not. In the present case the proceedings were let to go to an advanced stage without correcting the anomaly or defect. Such failure on the part of the J 2 JUDGMENT Mushabati, JS. delivered the judgment of the Court Legislation referred to: I Rules of the Supreme Court, 1999 Edition - 0.113 The 1st and 2nd appellants commenced an action against the respondents by originating summons for vacant possession of the property known as Plot No.4047 Buyantanshi, Kitwe which they alleged was occupied by the 2nd respondent without licence or consent. The action was commenced under the provisions of Order 113 of Rule of the Supreme Court (White Book). The brief facts of this case are that the 2nd respondent once worked for the 1st appellant but had his services terminated through a dismissal on 14th December, 1994. He occupied the house under review as incident to his employment: and it was later offered to him it for purchase by the 3rd respondent but did not,pay for it. This same house was offered to the 2nd appellant by Stanslus Brian Musonda, the liquidator of the 1st appellant. In the mean-time S. P. Mulenga Associates, the 3rd respondent, offered this same house to the Rev. Joel Chisanga the 1st respondent. In short this property was offered to three different people. The appellants were the applicants in the court below. At the trial the court below dismissed the claim hence the appeal. J 4 appellants to correct the process rendered the proceedings to be bad in law. We have therefore, no doubt that the case having been I commenced under a wrong enactment, the matter is wrongly before us. The proceedings were a nullity. We therefore order that the proceedings be sent back to the court below so that the parties shall commence the action afresh using the correct procedure or process. The appeal has therefore no merit and it dismissed. Costs shall be in the cause. L. P. Chibesakunda SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE S. S. K. MufYthali Aq. SUPREME COURT JUDGE