Faith Kashweka and Anor v Yellow Brick Estate Properties and Ors (Appeal No. 333/2024) (29 August 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 333/2024 BOLDEN AT LUSAKA BETWEEN: 1 s-r APPELLANT 21u> APPELLANT 11,~iiooeri\, AND "'60061 1,.1.1 YELLOW BRICK ESTATE PROPERTIES 1 s-r RESPONDENT RESPONDENT KENNEDY CHOMBA 21fD HAUZAM CONSTRUCTION COMPANY 3RD RESPONDENT LIMITED CORAM: Siavwapa JP, Chishimba and Patel, S.C JJA On_2 2nd April and.2 9th August 2025 For the Appellants: J. Ngandu and Mr. M.B Mwenda of Messrs Kaumba Mwondela Legal Practitioners. For the 1st and 2nd Respondents: N/ A For the Respondent: Mr. B. Mwaza of Messrs Nsapato 3rd & Company legal Practitioners. JUDGMENT CHISHIMBA JA delivered the ruling of the Court. CASES REFERRED TO: 1. Stanbic Bank v Micoquip Zambia Limited (Appeal 180 of2015) 2. Sachar Narendra Kumar v Joseph Br ~~~,..(Sl CZ Judgment No. 8/2013) Aaron Chungu v Peter c:~~ /8/02/2023) J2 3. Sampa and Others v Wina and Another< 12014) 3 Z.R. 35) 4. Attorney General v Aboubacar Tall and Zambia Airways Corporation (SCZ Appeal No 77 of 1994) S. Simbeye Enterprises Limited and lnvestrust Merchant Bani!: (Zl Limited v Ibrahim Yousuf (SCZ Judgment No 36 of 2000) 6. Ngoma and Others v LCM Company Limited and Another (SCZ Appeal 122 of2017) 7. Kaboiri v Stanbic Bank Zambia Ltd Another SCZ Appeal 193 of2011) 8. Rae Zambi Limited v The Attorney General as represesentatives of 59 others) and Kachemu Inve&tsnent Limited & Cheers Real Estate Company Ltd (CAZ Appeal No. 347/ 2023) 9. Thomas Nyi.rongo (suing in his capacity as representatives of 59 others) and Kachema Investment Limited & Cheers Real Estate Company Ltd (CAZ Appeal No 347/ 2023) LEGISLATION REFERRED TO: 1. The High Court Rules of the High Court Act, Chapter 27 of the Laws of Zambia 2. The Lands Act Chapter 184 of the Laws of Zambia 3. The Lands Tribunal Act No. 39 of2010 WORKS REFERRED TO: 1. Halsbury's Laws of England, 5th Edition 1.0 INTRODUCTION 1. 1 This appeal is against the composite ruling of Hon. Mr. Justice Charles Zulu delivered on 20th September, 2024, arising from two applications. The first application was for joinder of parties post judgment by the intended third and fourth defendants and for a stay of execution. The second was for joinder by the intended fifth and sixth defendants. J3 2.0 BACKGROUND 2. l The appellants were the intended 3rd and 4th defendants while the 1st respondent was the plaintiff and the 2nd and 3rd respondent were defendants in the court below. The factual background of the appeal is that 1st respondent took out an action against the and respondents seeking the following 2nd 3,d reliefs: (i} An Order declaring that the plaintiff is the legal owner of Lot No. 16626/M, Lusaka, having bought the same as an innocent purchaser for value without notice of any encumbrance via contract dated 10th March, 2022; (ii)An Order directing specific performance and registration of the conveyance of Lot No. 1662 6/M, Lusaka into the Plaintiffs name; (iii) An Order of Injunction restraining the 1st defendants, their agents or servants from interfering v.rith the plaintiffs quiet enjoyment of Lot No. 1662 6/M, Lusaka; (iv) Costs of or incidental to this action; and (v) Any other relief the Court may deem fit. • J4 2.2 The learned Judge heard the matter and rendered Judgment on May 20, 2024, dismissing the 1st respondent's claims. In the main action, it was found that the duplicate Certificate of Title that was used by the 2nd respondent to sell the property to the is1 respondent was fraudulently obtained. The court further held that the subject property was fraudulently sold because it belonged to the respondent, and 3rd that at no time did the 3rd respondent lose its Certificate of Title or sell the land in question to the 2nd respondent or any other person. The Learned Judge ordered that the duplicate Certificate of Title bearing the name of Kennedy Chomba, the 2°d respondent, be cancelled and a certificate of title in the name of the 3r<1 respondent be issued. 2.3 Following delivery of the judgment of the Court, the appellants applied for joinder of parties post judgment on grounds that nd they had previously also purchased the property from the 2 respondent. They also sought an order for stay of the judgment of the Court. 3.0 DECISION OF THE COURT BELOW JS 3.1 In determining the application, the lower court referred to a plethora of authorities, including the case of Stanbic Bank v Micoquip Zambia Ltd111, in which the Supreme Court held: Where there is no appeal or an application for reutew, there is no basts for Jotntng he party to the proceedings which are at an end. The Court obseroed that the proceS$ for Joinder should really be set in motion at or before the hearing of the suit. 3.2 The Judge stated that matter was resolved to the extent that it was adjudged that the land lawfully belonged to the 3rd respondent as the registered proprietor issued ·with a Certificate of Title dated 28 May 2015. Further, the purported 'duplicate' th Certificate of Title dated February 22nd 2022, upon which the ' st 2 respondent entered into a transaction with the 1 nd respondent was found to have been fraudulently issued and was thus duly cancelled, and the 3ro respondent was accordingly restored. The Court belo\v was therefore, of the view that the matter between the I st respondent and the 2nd and 3rd respondent stood resolved and was res judicata. 3.3 The lower court went on to state as follows: I am mindful of what was stated in John Mukona and Others v Development Bank of Zambia and Others, wherein the Court of Appeal held: J6 What detenntnes whether or not a person is entitled to challenge a.judgment ts the effect the saidjudgment has on that person. Once established, then, in a Judgment ensuing from a trial, that is a non-party affected by it ca.n apply to be joined post judgment if they were not aware of the proceedings. In this case, the person is not required to commence a fresh action in order to challenge the judgment. 3.4 The Court below held that it is not sufficient for an intended party to state say that they were unaware of the proceedings. That where a party seeks to join the proceedings in which judgment was obtained to that person's exclusion, by the fact that that person was not made aware of the proceedings, the purpose and the intended key outcome of the joinder must be disclosed. Usually, this would take the form of seeking to have the judgment revie\ved or for purposes of appealing against the judgment. 3.5 He was of the view that there were no material facts disclosed which would have the effect of assailing the judgment. The applications for joinder was found to be bereft of an application for review or intent to lodge an appeal against the said judgment. The Court below he went on to dismissed the appellant's application for joinder by the appellants. J7 4.0 GROUNDS OF APPEAL 4.1 Dissatisfied with the decision of the lower court, the appellants appealed on the following grounds: (ii The Court misdirected itself in law and fact when it held that a party seeking to be joined to proceedings where judgment was obtained in their absence must disclose both the purpose of the joinder and the intended outcome. (ii) The Court misdirected itself in law and fact when it held that the joinder application did not disclose material facts capable of challenging the judgment. (iii) The Court misdirected itself in law and fact when it held that the Appellants' argument of having sufficient interest in the property, due to purchasing it from the first Defendant, was insufficient to warrant a joinder. 5.0 APPELLANT'S HEADS OF ARGUMENT 5.1 The appellants filed their heads of argument on 3rd October, 2024. In ground one, the appellants submit that Order 15 rule 6 {2) (b) of the Rules of the Supreme Court provides for the power to join a party at any stage of the proceedings. A party may be joined to ensure that all matters in dispute in the cause or matter be effectually, completely determined and adjudicated upon. A plethora of authorities were cited, including the case of J8 Sachar Narendra Kumar v Joseph Brown Mutale121 in which the Supreme Court held that joinder may be granted even after judgment has been delivered and stated that. "On this basis, taking into account that the respondent is the registered owner of the mortgaged property and had thereby shown sufficient interest and locus standi and was not aware of the proceedings, the Court below ordered that the respondent be joined to the proceedings." 5.2 The appellants pointed out that in view of the cited authorities, it is well established that for a party to be joined to a matter after judgment has been rendered, they must demonstrate that: (i) they possess locus standi; (ii} they have sufficient interest in the matter; and (iii} They were not aware of the proceedings leading to the judgment. 5.3 According to the appellants, there was evidence on the record of appeal that demonstrated that they possessed locus standi, sufficient interest and were not aware of the proceedings. Particularly, their assertion that they purchased Subdivision A, Subdivision B and the remaining extent of Lot No. 16626/M Lusaka from the 2 respondent. Following the purchase, nd Subdivisions A and B were successfully conveyed to the J9 appellants with Certificates of Title duly issued. On 12th August, 2024, the Ministry of Lands notified them that a judgment dated 20th May, 2024 had been registered on the remaining extent of Lot No. 16626/M Lusaka. This led to the cancellation of the title for the remaining extent and Certificate of Title No. CT 1036/6-2024 was issued to the 3rd respondent on 23rd May, 2024. 5.4 The appellants contend that at the time of purchase of the property, there was no notice or caveat on the property. The application for joinder was triggered by the fact that a judgment was rendered pertaining to the property t:vithout the appellants being heard. That, as bona fide purchaser, they intended to challenge the judgment and had satisfied the requirements for joinder. 5.5 With respect to ground nvo, the appellants submitted that the court below misdirected itself in law and fact when it held that the joinder application did not disclose material facts of challenging the judgment. They reiterated the principles on joinder of a party post judgment, discussed in the cases of JlO Sachar Narendra Kumar v Joseph Brown Mutale12 and l Ngoma & Others v LCM Company Limited13 l. 5.6 Reliance was also placed on the case of Sampa and Others v Wina and Anotherl41 where it was held that: It is clear from the foregoing authorities that a person may be joined to the proceedings notwithstanding that there is consent judgrmmt provided that he satisfies the conditions which have been set out in the London Ngoma case namely, that he must have locus standi, sufficient interest and must not have been aware of the proceedings, There, the learned Judge in the court below was wrong to hold that the appellant's application was misconceived. 5.7 The appellants maintained that they had disclosed material facts to support their application for joinder. 5.8 In support of ground three, the appellants argue that the Court misdirected itself in law and fact when it held that the appellants had insufficient interest to warrant a joinder. The appellants' position is that the duty of the party seeking to be joined as a party is to merely to show sufficient interest. In doing so, a party was not required to delve into the merits of the case. In sum, the appellants contended that the lower court erred in holding that their interest in the property was insufficient to • JI 1 warrant a joinder. They urged the Court to uphold all three grounds of appeal. 5. 9 The 3 respondent did not file heads of argument in objection rd to the appeal. Its application to file heads of arguments out of time was dismissed by a single Judge. 6.0 ANLYSIS AND DECISION OF THE COURT 6.1 We have considered the appeal, the authorities cited and the arguments advanced by the Learned Advocates. The facts preceding the appeal are that the Court below rendered a Judgment on 20 May 2024, dismissing the 1st respondent's claims, ordered the cancellation of the 2nd respondent's certificate of title. In additions, the Court ordered the issuance of a new Certificate of Title to the 3rd respondent as the legitimate owner of Lot No. 16626/M, Lusaka. 'fhe appellants applied to be joined to the proceedings after the final judgment had been delivered on 22 August 2024. Although the appellants raised three grounds of appeal, the main issue for determination, in our view are as follows; Jl2 (i) Whether the appellants have shown sufficient interest in this matter to warrant a joinder to the proceedings post judgment. 6.2 The law· on joinder of parties has been settled by several decisions. In Attorney General v Aboubacar Tall and Zambia Airways Corporationl5 the Supreme Court had this to say: > In a proper case, a Court can Join a party to the proceedings when both the plaintiff and the defendant have closed their cases and before judgment has been delivered by invoktng Order 14 rule 5. 6.3 Further guidance was given in the case of Simbeye Enterprises Limited and Investrust Merchant Bank (Z) Limited v Ibrahim Yousujt6J in which the Supreme Court held that: 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 or hts interest. The purpose of the rule is to bring all parties to dtsputes relating to one subject-matter before the court at the same time so that disputes may be determined without the delay, inconvenience and expense of separate actions and trials. 6.4 The preceding cases provide for a typical application for joinder before the rendering of Judgment. Another dimension of joinder of parties comes into play when the application is for joinder after a court has rendered its judgment i.e. post judgment. The • J13 case of London Ngoma and Others v LCM Company Limited and Another (supra) extensively relied upon by the appellants, is instructive. In the case of Kabwiri v Stanbic Bank Zambia Ltd and Another<7l the Supreme Court referring to the London Ngoma case stated that: In London Ngoma and Others v LCM Company Limited and Unfted Bus Company of Zambia Limtted (Lfquidator}, we allowed interested parties to join the action even after judgment. However, it must be appreciated that in that case what weighed heavtly tn favour of the applicants was the interest whtch they had shown to have fn the subject matter of the action. .. 6.5 This position was expounded in the case of Stanbic Bank v Micoquip Zambia Limited (supra) where the Supreme Court stated that: We take the vtew that the London Ngoma case was correctly decided given its circumstances and in terms of Rule 67 (l) of the Supreme Court Rules Cap 25, which provides for Joinder when an appeal is called/or hearing. We are also of the vtew that the London Ngoma case was dealing wtth a matter on appeal whfle fn the current appeal there was no appeal or review after the judgment. There ls therefore considerable force in the appellant's argument that the process for joinder • J14 • should really have been set in motion at or before the hearing of the suit. ... We therefore agree with the appellant that there is merit in theftrst ground of appeal that the application for Joinder was incompetent because lt was made long after judgment had been delivered between the respondent and Jes and in any event there was no appeal as Jes had fatled to meet the condition for the appeal nor was there any application for review. It follows also that the second ground of appeal must inevftably succeed because the court below had become functus officio as the judgment had been delivered and there was no pending appeal or revfew to warrant the jotnder. 6.6 The appellants applied to be joined as parties after judgment and that this application came about three months after the judgment of the lower Court was rendered. The Ruling of the Court reveals that by that time, there was no appeal pending against the Court's Judgment nor was there a review of the said Judgment. 6.7 The issue is whether the Court below erred by refusing to join the appellants to the suit post judgment. It is trite that the Court has power to join a party to a suit at any stage of the proceedings including post judgment. The Court has to inquire whether it can exercise that power, by determining whether the JlS requirements for joinder have been satisfied. An assessment as to whether joinder should be ordered is undertaken bearing in mind and all relevant factors to the balance of justice in the circumstances of the case. Joinder is not ordered on the mere fact that it is just and convenient or necessary. The effect of joinder relates back to the date on which the plaintiff commenced the proceedings. 6.8 Order 15 Rule 6 (2)(b) of the Rules of the Supreme Court is instructive on the law in relation to joinder, which provides that: "Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms it thinks just and either of its own motion or on application a) b) Order any of the following persons to be added as a party, namely; (i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matter in dispute in the cause or matter maybe 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 Jl6 to determine as between him and that party as well as between the parties to the cause or matter"' 6.9 In Ngoma and Others (Supra} the Court held that appellants who had an interest in the matter ought to have been joined to the action notwithstanding that consent judgment had been entered as they were not aware of the hearing. The Supreme Court in the case of Miles Sampa (supra) cited the London Ngoma case. 6.10 In the case of Rae Zambia Limited v The Attorney General & Tullow Zambia B<81 we summed up the requirements for joinder under Order 14(5)(1) of the HCR i.e. interest in the subject matter or the likehood to be affected by the result or outcome of the suit. In the case of Thomas Nyrirongo v Kashemu Investment Ltd and Cheers Real Estate Company Limited > We stated that "Joinder applications in Court are typically governed by principles of' "fairness, efficiency and judicial discretion" 6. 11 As regards the criteria, sufficient interest in the matter must be shown by the party or that the party's likely to be affected by the outcome of any decision of the Court. Jl7 6.12 The appellants' contend that they have shown sufficient interest, possess locus standi as bona.fide purchasers and that they were unaware of the proceedings leading to the judgment in a nutshell, the appellants seeks to be joined on grounds that has purchased subdivisions A and B of lot No 16626/M, Lusaka and possessing the certificates of title. 6.13 The lower Court refused the joinder because of respondent 2nd alleged interest in the land was obtained fraudulently and he could not legally give that which he did not possess in the first place. 6. 14 It is not in issue that the appellants purchased the property in issue from the 1st respondent and claim to be bona fide purchaser for value. 6.15 As regards sufficient interest, we hold the view that the appellants have not shown sufficient interest in the matter to warrant joinder. The fact that they contend to be bonafide nd purchasers for value is not sufficient for the reason that the 2 respondent who sold them the alleged land had acquired his interest fraudulently as per judgment of Court below and Jl8 rightfully could not legally give that "which he did not possess in the first place." 6.16 In joinder applications, a party must show the purpose and intended outcome ofthejoinder. It is not enough to merely state that party was not made aware of the proceedings. Material facts must be disclosed which would have an effect on the rendered judgment. The appellants herein did not show sufficient interest to warrant the joinder to the matter post judgment. 6.17 In our view the appellants were well within their rights to institute fresh legal proceedings against the 2nd respondent who sold them the alleged land\property. 6.18 For the reasons given above, we find no merit in the appeal and uphold the decision of the Court below to dismiss the application for joinder by appellants. 7.0 CONCLUSION 7.1 We reiterate that the Court below was on firm ground when it dismissed the application for joinder because no sufficient interest was shov.rn to warrant the joinder. We uphold the ,.. J19 judgment of Court below and dismiss the appeal. We make no order as to costs. ••••••••••••••••••••••••••••••••••••••••••• M. J. Siavwapa JUDGE PRESIDENT ....... ~.~. . rcµ~········· ♦ •••••••••••••••••••••••••••••••••••••• F. M. Chishimba A. N. Patel S.C COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J19 judgment of Court below and dismiss the appeal. We make no order as to costs. .................... f.. .................. M. J. Siavwapa JUDGE PRESIDENT ••••••••••••••••••••••••••••••••••••••• F. M. Chishimba A. N. Patel S.C COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE