Robert Chimambo v Sefuke (2023/HP/920) [2024] ZMHC 83 (30 January 2024)

AND SEFUKE DEFENDANT BEFORE THE HONOURABLE MRS. JUSTICE M. C. KOMBE For the Plaintiff No-appearance For the Def endant Ms. M . Kopulande - Messrs. Ranchhod Chungu Advocates. RULING • • Cases referred to: 1. African Banking Corporation Limited v. Mubende Country Lodge Limited (Appeal No. 116/2016). 2. Abel Mulenga and others v. Mabvuto Adan Avuta Chikumbi and Others (2006) Z. R 33. 3. Konkola Copper Mines v. Nyambe Martin Nyambe & 64 Others (CAZ/08/312/2017). -Rl- 4. Habib Industries Limited v. Amish Industrial Products Limited and Another (2012/HP/ 1427) (Unreported). 5. Attorney General v. Law Association of Zambia (SCZ No.3 of 2008). 6. Carm Inves tment Limited v. Circolo Italiano Di Lusaka (SCZ/ 8/204/2015). 7. Concrete Pipes and Products Limited v. Kabimba and Others (SCZ/8/ 146/ 2015). Legislation and other material referred to: • 1. The Rules of the Supreme Court of England, 199 Edition. This is a ruling on the Defendant's application to raise a prelimina ry issue to determine: • i) Whether the Plaintiff's action against the Defendant is properly before this Honorable Court in light of the fact that the Defendant has no locus standi or suffident interest in the matter . The Defendant filed into Court an affidavit in suppor t of the a pplication on 18th J u ly, 2023, deposed to by BRIAN ABWINO, an apvocate of Messrs. Ranchod Chungu Advocates, the advocates s eized with conduct of this matter. -R2- He deposed that the Plaintiff delivered a writ of summons and statement of claim at No. 8, Los Angeles Boulevard, Lusaka which was the address for Consolidated Advisory Services Limited. That the Plaintiff claimed the following against the Defendant: i) Damages for trespass; ii) Damages for nuisance; iii) Costs and any other relief • He deposed that the Defendant never entered onto the Plaintiff's land and never cut down any trees or vegetation and graded a road on the Plaintiff's land. Consequently, the Defendant never caused any nuisance to the Plaintiff. • It was deposed that the Plaintiff had commenced and served an action against the wrong party and the Defendant had no locus standi in this matter. At the hearing, I proceeded to hear the Defendant's application in the absence of the Plaintiff as I was satisfied that the Plaintiff deliberately stayed away after being du ly served with the notice of hearing. -R3- Learned counsel for the Defendant, Ms. M. Kopulande relied on the affidavit in support of the application and the skeleton arguments . In the arguments, counsel r eferred the Court to Order 14A ::-ulc l(l)a of the Rules of th e Supreme Court of England which provides that: "The Court may upon the application of a party or of its own motion determine any 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 a full trial of the action ... " Ms. Kopulande also referred co Order 14A Rule 2(3) which prescribes the requirements for employmg the procedure under Order 14A. It provides that: "The requirements for employing the procedure under this Order are the following: (a) the Defendant must have given notice of intention to defend; (b) the question of law or construction is suitable for determination without a full trial of the action; • • -R4- (c) such determination will be final as to the entire cause or matter or any claim or issue therein; and (d the parties had an opportunity of being heard on the question of law or have consented t o an order or judgment being made on such determination." It was submitted that the Plaintiff brought an action against the Defendant for trespass and :misance when the DefendanL had n ever entered or caused any nuisance on the Plaintiff's land. Coun sel argued that the Defendant h erein lacked locus standi. Counsel further s u bmitted that the Defendant had been wrongly sued and that this was a n issue tt.at cou ld be determined wi tho ut full trial as envisaged in Orde r 14A R.1le l(l)(a) of the Ru les of the Supreme Court. She also referred to the case of African Banking Corporation Zambia v. Mubende County Lodge Limited (tJ where the Court h eld that: • • "In the view that we take, what constitutes a notice of intention to defend, in the context of our rule s is the filling of a memorandum of appearance which is accompanied by a defence. It, therefore, follows that filing of a memorandum of appearance wit h a defence is -RS- a pre-requisite to launching an application under Order 14A, RSC." Ms. Kopulande argued that the Defendant filed a memorandum o f appearance and defence and therefore complied with the mandatory prescription to give notice of intention to defend. It was furth er argued tha':. the court had in a p lethora of cases pronounced itself on the requirement by a par ty to an action (or one j oining a n action) to have sufficient interest and locus standi in the m atter. Reliance was placed on the case of Abel Mulenga and others v. Mabvuto Adan Avuta Chikumbi and Others!2 1 where the Court stated that: "As we see it, the question as to whether o r not the appellant were ent itled to be joined as parties pursuant to rule 32 hinges on whether or not on the evidence adduced before the court below, they had shown sufficient interest or locus standi to e ntitle them to be joined as parties to those proceedings ... " She further referred to Konkola Copper Mines v. Nyambe Martin Nyambe & 64 Others 131 where the Court guided that a party qualified to be a party to proceedings where such a pa r ty had such sufficient in terest and locus standi in tbe matter. The court posited as follows: • • · R6· "The three considerations that a court dealing with an application for joinder should consider apart from putting an end to any further litigation by avoiding multiplicity of actions and the interests of justice are whether the applicant has locus standi and sufficient interest in the matter and whether the applicant was aware if the proceedings. This is in line with the holdings in the cases of The Attorney General v. Aboubacar Tall and Zambia Airways Corporation Limited, London Ngoma and Others v LCM Company and Another and Abel Mulenga and 7 Others v The Attorney GeneraL" • It was submitted in I.his regard that the Defen dant had never entered onto the Plaintifrs land or cut down trees, or vegetation and graded a road on the Plaintiffs land and the refore never caused any nuisance. Learned counsel further submitted that the Plaintiff brought this action against a wrong party who should not have been joined to the • proceedings. In her oral submissions, counsel reiterated her arguments and urged this Court to dismiss the action against the Defen dant. I have carefully considered the affidavit evidence and the arguments in support of this application. -R7- • • By this applica tion, I have been called upon to determine whether the Plaintiff's action against the Defendant is properly before this Court in light of the fact that the Defendant h as no locus standi or sufficient interest in Lhe matter. The application is anchored on Ord.er 14A rule (1) and (2) of the Rules of the Supreme Court of England which provides that: "(1) The Court m ay upon the application ofa party or of its own motion determine any 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 a full trial of the action, and (b) such determination will finally determine (subject only to any possible appeal) the entire c ause or matter or any claim or issue therein . (2) Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just." Order 14A above empowers the Court to determine any question of law or construction ansing in any matter at any stage of the proceedings where it appears to the Court that such question is suiLable for -R8- determination without a full trial of the action , and where such determination will finally determine the entire cause or matter or any claim or issu e therein . My understanding of Order 14A of the Rules of the Supreme Court, therefore is that it can only be invoked when the application has the potential of bringing the entire matter to finality. • The two conditions that must be satisfied before determining any question of law a re that the question must be suitable for determination without the need for a full tr:al and secondly, that the determination must be one that would finally determine the entire cause or matter or any claim or issue in the matter. Similar sentiments were expressed by Sitali J, in Habib Industries Limited v. Amish Industrial Products Limited and Anot her (41 when • addressing the effect of Order 14A of the Rules of the Supreme Court. She stated that: "On the other hand, Order 14A of the RSC edition empowers the court to determine any question of law of construction of any document arising without full trial of the action whether it appears to the court that such a determination will finally determine the proceedings or an issue in the proceedings." -R9- It can thus be stated that it is not every qu estion of law or construction that can be determined with ou t a full trial of the action. Fc•r instance, on a question of wh ether or not there was d iscri mination against the p etitioner , the Supreme Court stated in the case of Attorney General v. Law Association of Zambial5l that: • "We accept that on the facts on record and the nature of reliefs sought, the issue of discrimination could not have been dealt with as a preliminary issue. The trial Judge was, therefore, on firm ground when he held that whether there was discrimination or not against the Petitioner was an issue to be determined during the hearing of the main action." In the case in casu, the Defendant argues that he never entered onto the Plaintiff's land or cut d own trees, or vegetation and graded a road on the Plain tiffs land and therefore never caused any nuisance. It is • th us contended that the Plain tiff brought this action against a wrong party who should not have been joined to the proceedings. That this is an issue that cou ld be detern ined without full trial a s envisaged in Order 14A Rule l(l)(a) of the Rules of the Supreme Court. I have carefully analyzed the Defendant's con tention in light of the reliefs sought by the Pia.in tiff a s en do rsed in the statement of claim. The ·RlO· Plaintiff in the statement of claim in essence claims for d amages for trespass to land and nuis ance. It is therefore clear that the p reliminary issue raised is intrinsically lfokcd to the main C:Ues tion for determination a t trial. My considered view is that the qu estion raise :i is not su itable for determ ination without the need for a full trial. I s ay :his because the determination of whether or n ot the Defendant trespassed or caused nuisance on the Plaintiffs land is one that requires that evidence be adduced . • ln line with this , the Su preme Court in the case of Carm Investm e nt Limited v . Circolo Italiano Di Lusaka161 expressed misgivings at parties frequently raising prelimin ary objections as there could be a danger of the court straying into the substantive issues. I therefore form the view that the determ ination of this issue at a • preliminary stage which is linked to the main qu estion to be determined at trial poses a dange:- of straying into or pre-emp ting the issues U1at are to be determined at the hearing of th e main action. In saying this, I am also ably g.1ided by what the Supreme Cour t stated in Concrete Pipes an d Products Limited v . Kabimba and Others 111 that: · Rll· "In many cases that have come before this court and where preliminary issues have been raised, we have deferred our ruling on such preliminary issues until after the main action was heard .. . . . . in the present case, the preliminary issue was raised by the Appellant at the commencement of the hearing. Although the court indicated in the passage that we have quoted from its ruling that the preliminary issue was dismissed, the context of that ruling is that the appellant was advised to make that preliminary issue part of its defense." • It would appea r that in cases where the preliminary issue raised is not capable of fully determining the questions without a tr ial of the action, it is prudent for the court to defer the ruling u ntil after the hearing of the main a ction. In view of the foregoing, cons:::lering the fact that the p reliminary issue • raised by the Defendant is integrally linked to the core of this cause matter and is the basis upon which the reliefs endorsed in the statement of claim a re sought, the Defendant is at liberty to make the issue raised as pa.rt of h is Defence. For the reasons that I h a·;e highlighted above, I find that the Defendant's application to raise a preliminary issue a l this stage of the -R12- proceedings has no merit ar:d it is accordingly d ismissed it. I make no orders as to costs. DELIVERED AT LUSAKA THIS 30TH DAY OF JANUARY, 2024 • • JUDGE • \ -R13-