Zambia National Commercial Bank Plc v Varlostyle Digital Home Limited and Ors (2024/HPC/0399) [2025] ZMHC 137 (30 December 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2024/HPC/0399 BETWEEN: ·- ~·--·~--·-~~· HIGH CO ' ZAMBIA NATIONAL COMMERCIA Bltl'9Hrff:LC ·"· ZAMBIA ·-1 1"[-~-orc-~~6]? VARLOSTYLE DIGITAL HOME LI ITED RE P. O. .. _ .. ___ _ AND TRY It • KASHIBA NURUDINE MUMPASHYA .. 1..•i ::SION PLAINTIFF 18T DEFENDANT ' -' 2ND DEFENDANT MOSHA AND COMPANY (A FIRM) INTENDED 3RD DEFENDANT Before: The Honourable Lady Justice Chilombo Bridget Maka For the Plaintiff: Ms. C. Lundu with Mr. C. Chiluba - Messrs. Simeza Sangwa & Associates. For the 1st Defendant: No Appearance For the 2 nd Defendant: Ms. D. Kapitolo with Mr. K. Samiselo - Messrs ZS Legal Practitioners. For the Intended 3 rd Defendant: Mr. P. Chibundi - Messrs Mosha and Company RULING Legislation Referred to: 1. The High Court Rules, Chapter 27 of the Law of Zambia. 2. The Rules of the Supreme Court of England, 1999 Edition (White Book). Cases Referred to: 1. Attorney General v. Tall and Another 1995~1997 Z. R 54 2. Hamusonda Mweemba v. Kamfwa Obote Kasongo and Zambia State Insurance Corporation Limited 2006 ZR 101 1. Introduction 1.1. This is the 2 nd Defendant's application for an order for joinder of party and to make a counter claim filed into Court on 14th November, 2024. 1.2. The application was made pursuant to Order 14 rule 5(1) of the High Court Rules as read with Order 15 rules 3 ( 1) and 6(2) and Order 28 rule 7 ( 1) of the Rules of the Supreme Court of England and supported by an affidavit and skeleton arguments. 1.3. Both the Plaintiff and Intended 3 rd Defendant opposed the application by filing respective affidavits in opposition accompanied by skeleton argument. The 2nd Defendant replied with skeleton arguments. 2. The 2 nd Defendant's Case 2.1 . The Defendant's application for leave to join an additional party to the proceedings and to lodge a counterclaim was founded upon the grounds specified in the summons as follows; 1. The 2 nd Defendant asserts that he did not and has never received independent legal advice from the Intended 3 rd R2 Party. The 2 nd Defendant disputes this as a fraudulent assertion and seeks to challenge it directly through a counter claim. 2. A question or issue exists, arising from or connected to the 2 nd Defendants proposed counter claim, which necessitates the involvement of the Intended 3rd Party for a complete resolution of the issues between the 2 nd Defendant and the Plaintiff. 3. The Intended 3 rd Party is likely to be directly affected by this Honourable Court's determination of the 2 nd Defendants proposed counter claim. 2.2. The affidavit evidence highlighted that the letter of 23rd August 2023 from Mosha and Company, exhibited by the Plaintiff as "MC 1" and relied upon to assert that the 2 nd Defendant obtained independent legal advice regarding the 3 rd party mortgage over Stand 4804, was in fact false and misleading. 2.3. That the 2 nd Defendant never engaged the Intended 3 rd Defendant for any legal advice and as such seeks to make a counter claim alleging fraud against the Intended 3 rd Defendant. 2.4. It was contended that allowing ajoinder would enable the Court to address all issues arising from the intended counter claim and facilitate a conclusive determination of the matter. R3 3. The Plaintiffs Opposition 3.1. The Affidavit in Opposition dated 23rd April, 2025 was deposed by Museke Chilufya, the Recoveries and Restructuring Head in the employ of the Plaintiff. 3.2. The evidence was that the Plaintiff availed a loan facility to the Defendant which was secured by a 3rd Party mortgage. It was averred that the 2 nd Defendant executed the 3 rd Party Mortgage over Stand No. 4804, Kitwe and by letter dated 15th September, 2021, Mosha and Company, confirmed to the Plaintiff that the 2 nd Defendant was duly advised of the effects and implications of the 3 rd Party Mortgage. 3.3. That the 2 nd Defendant had alleged that Mosha and Company fraudulently represented to the Plaintiff that they had rendered him independent legal advice and were seeking to join the firm as a party to the proceedings. 4. The Intended 3 rd Defendant's Opposition 4.1. The Affidavit in Opposition dated 2 nd May, 2025 was deposed by Phillip Kafusha Chibundi, Counsel practicing under the firm and style of Messrs. Mosha and Company and seized with conduct of this matter. 4.2. The gist of the evidence was that the 2 nd Defendant was duly offered independent legal advice pertaining to the legal and proprietary consequences of mortgage his property. This happened when the 2 nd Defendant together R4 with the Director of the 1st Defendant, Paul Mulumba, went to the Intended 3 rd Defendant firm and were attended to by the deponent of the Affidavit. 4.3. It was averred that the 2 nd Defendant had with him an Independent Legal Advice Form, which was issued to him by the Plaintiff and after informing him of the consequences of the 3 rd party mortgage, he signed the form and took it back to the bank. 4.4. It was further contended that the quest to make a counter claim against the Plaintiff by the 2 nd Defendant had no nexus with the Intended 3 rd Defendant. 4.5. It was thus asserted that the joinder of the firm is devoid of merit and an abuse of Court process. 5. Hearing of the Application 5.1. At the hearing of the Application, Counsel representing the parties were before Court and relied on their respective documents filed in support of and in opposition of the application. 5.2. The oral submissions largely reiterated the arguments contained in the written submissions. 6. Consideration and Determination 6 . 1. I have considered all the evidence and arguments by all the parties. RS 6.2. The 2 nd Defendant's application to join a party and to obtain leave to file a counterclaim is brought under Order 14 Rule 5(1) of the High Court Rules, read together with Order 15 Rules 3(1) and 6(2) of the Rules of the Supreme Court. 6. 3. Order 14 Rule 5 ( 1) of the High Court Rules states that: "If it shall appear to the Court or a Judge at or before the hearing of a suit, that all the persons who may be entitled to, or claim some share or interest, in, the subject matter of the suit, or who may be likely to be affected by the results, have not been made parties, the Court or a Judge may adjourn the hearing of the suit to a further day, to be fixed by the Court or a Judge, and direct that such persons shall be made either Plaintiffs or Defendants in the suit as the care may be". 6.4. The Court's discretion to order joinder of party has been restated on a plethora of cases. In Attorney General v. Tall and Another111 the Supreme Court considered the issue of joinder and stated that the Court has inherent jurisdiction to join a party to proceedings in the interest of justice. 6.5. The rationale for Order 14(5) of the High Court Rules, was to avoid multiplicity of actions, prevent wastage of time and avoid unnecessary expenses. R6 6.6. Order 14 Rule 5 of the High Court Rules was reinforced in Hamusonda Mweemba v. Kamfwa Obote Kasongo and Another12l as follows: "A Court can order ajoinder ifit appears to the Court or a Judge that all persons who may be entitled to or claim some share of interest in the subject matter of the suit or who may be likely to be affected by the result require to be joined. 6.7. The conditions upon which the Court may use its discretion to join a party to a suit are twofold; sufficient interest in the subject matter and likelihood of being affected by the results of the case. 6.8. Order 15 Rule 3(1) of the Rules of the Supreme Court provides for counterclaim against additional parties and states that; "where a defendant to an action who makes a counterclaim against the Plaintiff alleges that any other person (whether or not a party to the action) is liable to him along with the Plaintiff in respect of the subject matter of the counterclaim, or claims against such other person any relief relating to or connected with the original subject matter of the action, then subject to rule 5 (2} he may join that other person as a party against whom the counterclaim is made". 6. 9. The practice notes on the effect of the rule under Order 15/3/2, explains that:- R7 "Para 1 of rule 3 allows the joinder of a person to the counter claim made against the Plaintiff, not only where that person is liable "along with" the Plaintiff but also where the relief claimed against that person relates to or is connected with the original subject matter of the action. The second limb of para 1 allows the Defendant to make a claim against the added party which is alternative only to his claim against the Plaintiff. 6.10.lt must be noted that Order 15 Rule 3 is subject to Rule 5(2) which states that:- "If it appears on the application of any party against whom a counterclaim is made that the subject matter of the counter claim ought for any reason to be disposed of by a separate action, the Court may order the counterclaim to be struck out or may order it to be tried separately or make such Order as may be expedient" 6.11. In my view, the combined effect of Rules 3 and 5 is that a counterclaim against the Plaintiff must already be before the Court at the time the Defendant applies for the joinder of any other party. 6.12.0rder 15 Rule 6 (2) also cited by the 2 nd Defendant provides for misjoinder and non-joinder of parties as follows:- "Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter, the Court may on such R8 terms as it thinks just and either of its own motion or an application- a) Order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party b) Order any of the following persons to be added as a party namely-: i) any person who ought to have been added as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter". 6.13. The essence of Rule 6 which is of general application is to prevent an action being defeated by reason of misjoinder and non-joinder of parties and provides for all necessary amendments in respect of the parties to an action being made at any stage of the proceedings. Order 15 Rule 6(2) of the Rules of the Supreme Court is similar in application and scope to Order 14 Rule 5 of the High Court Rules. R9 6.14. The final provision relied upon by the 2nd Defendant in support of its application was Order 28 Rule 7 of the Rules of the Supreme Court, which governs counterclaims by a Defendant in proceedings commenced by Originating Summons and stipulates that: "A defendant to an action begun by originating summons who has acknowledged service of the summons and who alleges that he has any claim or is entitled to any relief or remedy against the Plaintiff in respect of any matter (whenever and however arising) may make a counterclaim in the action in respect of that matter instead of bringing a separate action". 6.15. The foregoing provision identifies the proper party against whom a counterclaim must be directed, namely the Plaintiff and not a 3 rd party. Likewise, the rules governing counterclaims, including those under Order 15 Rule 3, require that the claim be anchored to the Plaintiff before it may be extended to a 3rd party. 6.16. In the present matter, it is not in dispute that the claim against the 2 nd Defendant is a mortgage action, the commencement of which is expressly provided for under Order 14 Rule 30 of the High Court Rules, by way of Originating Summons. 6.17. It is further trite that the counterclaim that the 2nd Defendant intends to make is not before Court. The nature of the counterclaim can however be discerned from R10 the grounds outlined in the summons and the evidence. The same pertains to fraud, or fraudulent representa tion by the Intended 3 rd Defendant to the Plaintiff based on the letter dated 23 rd August 2023 authored by Messrs Mosha and Company. 6.18. Although the 2 nd Defendant asserts that the proposed counterclaim is also directed against the Plaintiff, I find this contention to be without merit. There is no proper foundation for a counterclaim against the Plaintiff, as the allegations of fraud are unrelated to the mortgage action. In reality, the counterclaim is aimed solely at the intended 3 rd Defendant, thereby rendering the application inconsistent with the rules invoked. 6.19. It must further be noted that pursuant to Order 15 Rule 5 and Order 28 Rule 7(2), the Court retains discretion to determine whether the issues raised in a counterclaim warrant disposal by way of a distinct action, in which event the Court may order that the counterclaim, notwithstanding its propriety, be heard separately. 6.20. Accordingly, although the cited provisions confer upon the Court the authority to join a 3rd party to the proceedings, - such discretion may only be exercised within the confines of the rules previously outlined. Allegations of fraud cannot properly be determined within the context of a mortgage action, and where such a counterclaim is Rll brought before the Court, the appropriate course would be to strike it out and direct that it be tried separately. 6.21. I am mindful of the law relating to multiplicity of actions and of the Supreme Court's guidance on the subject. In the present case, however, the 2 nd Defendant's application for joinder and leave to file a counterclaim does not satisfy the threshold prescribed under the Order relied upon. 6.22. Most significantly, the 2 nd Defendant has not demonstrated that the Intended 3 rd Defendant has any interest in the subject matter of the suit, namely the mortgage nor will they be affected by the outcome of the suit. 6.23. It is clear that this case is a subtle attempt to divert the court from the enforcement of the mortgage action to alleged claims of fraud which has nothing to do with the Plaintiff. The application cannot therefore be entertained. 7. Conclusion and Orders 7.1. The 2 nd Defendant's application to join a party to proceedings and make a counter claim is devoid of merit. 7.2. The application is hereby dismissed, with costs awarded to the Plaintiff and the Intended 3rd Defendant, such costs to be taxed in default of agreement. R12 7.3. The Originating Summons will be heard on 19th January, 2026 at 09:00 Hours. 7.4. Leave to appeal is hereby granted. Delivered at Lusaka this 30th day of December, 2025 ~ . ............. ~ ..... . Chilombo Bridget Maka HIGH COURT JUDGE R13