Umeshi Patel and Anor v Flame Egypt Company (2015/HP/2314) [2024] ZMHC 97 (21 May 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) \C OF ZA ol.lRTOF ZAt.,r 2.3 '4 2015/HP/2&½4- BETWEEN: UMESHI PATEL PRIN9,PAL 2 \ MA~ 2024 ~ y . 1 STPLAINTIFF TIME TRUCKING LIMI 2ND PLAINTIFF AND FLAME EGYPT COMPANY 1 STDEFENDANT FLAME WORKS AND SUPPLIERS LIMITED Before: The Hon . Mr. Justice Matthew Zulu. For the Plaintiff: For the Defendant: Ms. N. Mbuyi, and Mr. N. Nkhata, of Messrs Paul Norah Advocates. Mr. J. Tembo of Messrs Linus E. Eyaa & Partners. RULING Cases referred to: Legislation & other materials referred to: 1.0. INTRODUCTION 1.1. This ruling is in respect of an application by the second Defendant for an order directing service on the first Defendant. the application was made pursuant to Order Rl III rule 2 of th e High Court Rules Chapter 27 of the Laws of Zambia. 2.1 BACKGROUND 2.1 A brief background t o this application is that the Plaintiff, Time Trucking Limited, took out a writ of summons and statement of claim d ated December 3, 2015 against the Defendants, Flame Wor k s and Suppliers Limited, seeking the following reliefs: Damages for breach of contract; i. ii. Damages for breach of s t atutory duty, iii. Damages for negligence; iv. v. Interest; and Costs. 1.2. The Defendant in his d efence averred that the it was true the Plaintiff contracted it to build a house for him, but denied that the agreement included d ecor ating the said house. 1.3. The Defendant denied th e allegations that the contract included: 1. 11. 111. 1v. v. v1. Sup p ly of ZESCCT m ain electrical networks and external electrical works; Landscape related civil works and finishing External pool; Pool electromechanical; Sauna; and Salination Plant. 1.4 The Defendant counter -claimed as follows: (a) An order and declaration that the contract of sale dated 2 0 th Novembe r, 2009 between the Plaintiff and Defendant was duly rescinded by the Plaintiff; R2 (b) An order tha t the Defend ant pays the Plaintiff the equivalent rebased amou nt of K25, 000. 00 that was paid by the Plaintiff u nder the rescinded contract; (c) An order t ha t the caveat placed on the Defendant's property by the Pla intiff premised on the rescinded contract of sale be removed; (d)An order for costs incidenta l to these proceedings; and (e) Any other re lief that the court may deem fit. 3.0 THE SECOND DEFENDANT'S AFFIDAVIT EVIDENCE 3.1 An affidavit in support wa s dep osed t o by Mut ale Mukuka, the second Defendant's Advocate . It was deposed that this matter was initially commenced a gainst the 2 nd Def end ant as sole Defendant and that the secon d Defend a nt subsequently applied to join the first Defenda nt, a Company incorporated in Cairo, Egypt to the p roceedin gs . And that th e order for joinder was granted by ruling d ated April 14 , 2 01 7, but that the Plaintiffs have never served process on th e first Defendant. 3.2 The Plaintiff did not file an affidavit in opposition instead, the application was opposed via skeleton argument s and viva voce submissions. 4.0 THE PARTIES' SKELETON ARGUMENTS 4.1 The second Defendant's Advocate, Mr. Sitali argued that the first Defendant ought to b e s erved the originating p r ocess. That as the first Defendant was made a p arty to the p resent proceedings premised on r epresentations made before court on affidavit, there was risk that judgment m ight be entered against the first R3 Defendant without it being accorded an opportunity to be heard. 4.2 to augment his arguments, Mr . Sitali adverted to the case of Bob Zinka v The Attorney General (1990-1992) Z. R. 73 wherein the Supreme Court held: The p rinciples of natura l justice - an English law legacy - are implicit in the concept of fair adjudication. These principles are substantive principles and are two-fold, namely, that no man shall be a judge in his own cause, that is, an adjudicator shall be disinterested an unbiased (nemo judex in casua): and that no man shall be condemned unheard, that is, parties shall be given adequate notice and opportunity to be heard (audi altampartem). As quaintly stated by an eighteenth -century judge, Fortescu, J., in R v Chancellor of the University of Cambridge at p. 567: Even God himself did not pass sentence on Adam before he was called upon to make his defence. We are, of course, here concerned with the second principle. The principles of natural justice must be observed by courts, tribunals, arbitrators and all persons and bodies having the duty to act judicially, except where their application is excluded or by necessary implication. 4.3 It was further argued that by the court's own ruling granting joinder, it was clear that the first Defendant would be affected R4 by the decision of this court. An excerpt from the ruling of the court was ref erred to couched as follows: I am satisfied that [2 nd Defendant] has managed to satisfy the conditions prescribed in Order XIV relating to an app lication for non-joinder. I am of this view because t he stated nexus is sufficient proof that [the 1 st Defendant] has an interest in this legal suit and is likely to be affected by the result of the suit ... FEC shall be joined to this suit as the 1 st Defendant. This shall bring all parties to this dispute before the court and thereby avert the possibility of a multiplicity of actins arising from the same facts, a position that was emphasised by the Supreme Court in the case of Simbeye E'l;terprises Limited & Investrust Merchant Bank Limited v Ibrahim YousufSCZ Judg ment No. 36 of2000 in which it was held as follows : It has been the practice of the Supreme Court to join any person to the appeal if the decision of the court would affect that person of interest. 4.4 The Plaintiff's Advocate, Mr. Mwamba, contended that even though the court had discretion to grant interlocutory orders, the exercise of such discretion was subject to particular rules governing practice and procedure of Court on the Specific matter which is subject of the application. That the present application, required an examination of the provisions of Order X rule 14 of the HCR, which scis out the practice and procedure on service of process as follows: Where the suit is against a defendant residing out of but carrying on business within the jurisdiction in his RS own name, or under the na me of a firm, through an authorised agent, and such suit is limited to a cause of action w hic h arose within the jurisdiction, the writ or document may be served by giving it to such agent and such service shall be equivalent to personal service on t he defendant. 4 .5 According to Mr. Mwamba the above provision highlights some elements which had since been satisfied by the Plaintiff, thus; (i) the defendant resides out of jurisdiction but carries on business within Zambia; (ii) An authorised agent carries on the defendant's business; (iii) there is a suit against the Defendant limited to a cause of a ction which arose within Zambia; (iv) there is service upon that authorised agent. 4.6 Mr. Mwamba argued that the second Defendant in its application dated December 16, 2016 had exhibited documents which indicate tbat the first Plaintiff is a Comp any that was domiciled in Egypt and thal the Board of Directors of the first Defendant on June 1, 2011, by resolution a uthorised the second Defendant as a Zambian Associate of the Company to undertake the instruction of the first Plaintiff's residential property as an agent. And that upon that breach of contract dated June 11 , 2011, a contract that was executed and performed in Zambia. 4.7 It was contended that the second Defendant h aving been duly served with the originating process, a n d the s econd Defendant • • R6 the ordinary and grammatical meaning of the words is that the person on whom service is effected must be one through whom the Defendant has continued to carry on business in the u jurisdiction. It did not include one who was previously an agent, but no longer is. That as it were, the second Defendant was an agent for the first Defendant for a specific project which had since come to an en d and the principal-- agent relationship had since terminated. 4.11 that the project having been completed, it could not be said that the second Defendant was carrying on the business through the second Defendant as its authorised agent. 4.12 it was contended that the Plaintiffs could not abdicate the prosecution the prosecution of their case according to the requirements of a fair hearing and place the burden of service on the second Defendant. 4.13 I was urged to grant the application sought that is, to direct the Plaintiffs to effect service on the first Defendant 5.0 5.1 with costs to the second Defendant. DETERMINATION I have carefully considered the affidavit evidence tendered by the second Defendant and the parties respective arguments tendered in by C8unsel. R8 5.2 The legal regime for service of process is a bly spelt out under Order X of the HCR. And the startin g point is that service of process ou ght to be personal . Further, where service is to be effected out of jurisdiction such as is sought in the present action, the law to b e relied on is as spelt out u nder Order X rule 15. And th e relevant portions th er eof are here- below excerpted : 15. Service out of the jurisdiction of a writ of summons, origin ating summons or originating notice of motion, or of a n otice of s uch writ of summons, o rigi nating summons o r notice of motion may be allowed by the Court or a Judge whenever- (e) The a c t ion is one brought to enforce, rescind, d issolve, annua l or otherwise affect a c ontract or t o recover damages or other relief for or in resp ect of the breach of a contract- (i) made w ithin the jurisdiction; or (ii) n1ade by or t hrough an a gent trading or residing within the jurisdiction on trading or beha lf of a principal residi ng out of the jurisdiction; or (iii) governed by Zambian la w; by its t erms or by in1plication to be or it is one brought in respec t of a breach comm it t ed within the j urisdiction of a contra ct wherever made, even though such breach was preceded or accomp anied by a breach out of the jurisdiction which rendered impossible the performance of the p art of rhe contract w hich ought to his own name or u nder th e name of a firm, through an authorised agent, and such suit is limited to a cause of action which arose within the jurisdiction. Under such a situation the writ or document may be served by furnishing it on such ager:tt, and such service shall be equivalent to p ersonal service on the defendant 5.6 However, as correctly observed by the second Defendant's Counsel, the fir s t Defendant was not previously domiciled within the jurisdiction fo r service on the second Defendant to amount to sufficient service. Clearly, the premium placed on Order X rule 14 is misplaced. The correct provision that is a pplica ble to the facts herein, is that postulated under Order X rule 15 (e)(i) and (ii), this is because the fir s t Def end ant has never been domiciled within jurisdiction and a cted on the impugned contract through its auth orised agent, the second Defendant. As such, the Plaintiff was duty bound to effect personal service on the first Defend ant upon it being joined to the proceedings a s a Defen dant . As such, the second Defendant's application is tenable 6.0 CONCLUSION 6.1 In the light of the foregoing, the application is granted as prayed. And for the avoidan ce of doubt the Plaintiff is hereby ordered to effect personal service on the first Defendant in the light of Order X rule 15. Rll 6.2 Considering the length of time that has elapsed in this matter, and in order to do complete and in order to perfect this order, I do h ereby exercise my discretion under Order III rule 2 of the HCR and do hereby grant leave to the Plaintiff pursuant to Order X rule 16 HCR to effect service of Court process on the first Defendant at 28, Elshaheed Ahmed Wasfy-Almaza- Heliopolis, Cairo, Egypt. 6.3 Costs for the second Defenda11t in the cause. Leave to appeal is granted . DATED THE ........ ... ... ............ DAY OF MAY 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ................................. . THE HON. MR. JUSTICE M. ZULU R12