Marvin Sana and 69 Ors v Concorde Construction (Appeal No. 98/2024) (9 December 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 98/2024 HOLDEN AT KABWE (Civil Jurisdiction) 0 9 DEC ""2' (.J ➔ BETWEEN: MARVIN SANA & 69 OTHERS APPELLANTS AND CONCORDE CONSTRUCTION RESPONDENT Coram: Kondolo SC, Banda-Bobo and Muzenga, JJA On 16th October, 2024 and 9th December, 2024 For the Appellants: Mr. K. Phiri of Messrs Malambo & Company For the Respondent: Mr. S. Mweene & Ms. M. Ngulube of Messrs Muyatwa Legal Practitioners JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Guardall Securities Group Limited v. Reinford Kabwe - CAZ AppealNo.44/2019. 2. Simbeye Enterprises Limited and Investrust Merchant Bank (Z) Limited v. Ibrahim Ibrahim Yusuf (2000) ZR 159. 3. Sampa and Others v. Wina and Another (2024) Vol. 3 ZR J2 4. Citibank Zambia Limited v. Suhaly Dudhia - Appeal No. 6 of 2022. 5. Development Bank of Zambia v. Sunvest Limited & Another (1995 -1997) ZR 187. 6. B.P. Zambia Pie v. Interland Motors Limited (2002) ZR 37. 7. Citibank Zambia Limited v. Suhayl Dudhia - SCZ Appeal No. 6 of 2022. Legislation & Other Authorities Referred to: 1. Industrial And Labour Relations Act, Chapter 269 of the Laws of Zambia. 2. Dr. P. Matibini SC, (2017) Zambia Civil Procedure: Commentary & Cases Vol. 1. Durban: LexisNexis. 1.0 INTRODUCTION 1.1 This appeal emanates from the decision of the Honourable Lady Justice T. S. Musonda of the High Court. We have been called upon to consider whether the lower court lost jurisdiction to determine this matter on the basis of Section 19 (3)(b) (i) (ii) of the Industrial And Labour Relations Act.1 2.0 BACKGROUND 2.1 On April 8, 2021, the lower court delivered a judgment in favour of the complainants, who are now the Appellants. On April 21, 2021, the Appellants filed an application for the assessment of all sums due as ordered by the presiding Judge, Mr. Justice Sunday B. Nkonde SC. J3 2.2 It became clear that the Respondent's name was a business name and the actual incorporated name was Ahmed Al-Khatib Investments Limited T / A Concorde Construction. The Appellants filed an application to substitute the Respondent's name with the correct legal entity. 2.3 On June 2, 2021, the Judge declined the Appellants' application for name substitution, citing a lack of jurisdiction based on the Guardall Securities Group Limited v. Reinford Kabwe1 decision by the Court of Appeal. 2.4 The Appellants explain that after the first ruling, the Appellants requested the lower court to reallocate the matter for reconsideration. The matter was reallocated to Justice T. S. Musonda. On October 21, 2022, the Appellants again filed an application to substitute the Respondent's name or add them as a party. Still, the application was dismissed based on the Guardall Securities Group Limited1 decision, which asserted that the court had no jurisdiction. 3.0 GROUNDS OF APPEAL 3 .1 Disconsolate with this turn of events the Appellants have approached us fronting two grounds of appeal couched as follows: "1. The court below erred in law when it found, that J4 it had no jurisdiction to entertain any applications following the lapse of one year despite re-allocation of the matter based on the Guardall Security Group Limited1 case. 2. The court below misdirected itself in law when it held that it had no jurisdiction to entertain any applications regarding the matter because judgment was already rendered in the matter and that it had not been set aside by the Court of Appeal." 4.0 APPELLANT'S ARGUMENTS 4.1 The Appellants filed in their heads of arguments in support of the appeal on 26th April, 2024. The Appellants argue that the court erred in law by ruling that it had no jurisdiction to entertain any applications because more than a year had passed since the original judgment, despite the reallocation of the matter. That the court relied on the Guardall Securities1 case, which the Appellants argue was incorrectly applied. 4.2 In the second ground of appeal the Appellants contend that the court also misdirected itself by ruling that it had no jurisdiction to entertain applications after judgment was given, even though the judgment had not been set aside by the Court of Appeal. 4.3 The Appellants reference the Industrial Relations Court Rules, which provides that nothing in the rules should limit the power of JS the court to make any order necessary for justice or to prevent abuse of the court process. 4.4 The Appellants argue that the lower court had the jurisdiction to substitute the name of the Respondent, even after the judgment was passed. They contend that since the Respondent had taken part in the trial, no prejudice would be caused by this substitution. 4.5 The Appellants refer to Rule 32 of the Industrial Relations Court Rules which grants the lower court broad authority to join a party that would be affected by the court's decision. This rule is invoked to argue that the lower court had sufficient legal grounds to allow substituting the Respondent's name. 4.6 They cite the Supreme Court case of Simbeye Enterprises Limited and Investrust Merchant Bank {Z) Limited v. Ibrahim Ibrahim Yusuf,2 which sets a precedent for joining a party to a case if the outcome would affect that party or their interests. That the case shows that disclosing a new cause of action is unnecessary when seeking to substitute or join a party, but it is sufficient to show that that the party would be affected by the proceedings. 4.7 The Appellants cite Zambian Civil Procedure, Commentary and Cases by Justice Patrick Matibini SC, which advocates for bringing J6 all necessary parties into a case to resolve the matter in one proceeding. That this is to avoid delays, inconvenience, and the expense of separate actions and trials. That the emphasis is on the need to resolve disputes with all affected parties present. 4.8 Furthermore, that the learned author posits that courts have broad discretion to add, substitute, or remove parties to a claim even after proceedings have begun. That to ease a just resolution, the court is empowered to ensure that all parties relevant to the dispute are involved. 4.9 Reliance is placed on the Sampa and Others v. Wina and Another3 case, where the Supreme Court recognised that it has inherent jurisdiction to join a party to an action, even after judgment has been entered. The case involved Appellants seeking to participate as interveners after a consent judgment, and the Supreme Court noted the issue of joinder has been the subject of litigation over the years. This supports the argument that the court can join or substitute parties after a judgment has been rendered. 4.10 The Appellants argue that the subject matter of the case directly affects the interests of the Respondent, particularly since the Respondent is essentially the same legal entity as Ahmed Al- J7 Khatib Investments Limited. Thus, joining or substituting the correct Respondent would be proper to avoid multiple actions. 4.11 It has been asserted that the lower court misdirected itself by declining to join or substitute the Defendant, Ahmed Al-Khatib Investments Limited, after judgment. The Appellants ask the court to allow the substitution under their second ground of appeal to avoid unnecessary litigation. 4.12 Our attention is drawn to the Supreme Court decision in Citibank Zambia Limited v. Suhayl Dudhia4 where the court overturned the Guardall Securities Group Limited v. Reinford Kabwe1 decision, labelling it as "bad law." According to the Appellants, this reversal has significant implications, as it nullifies all other decisions based on or arising from the Guardall case, which is central to the lower court's ruling in the present matter. 4.13 The Appellants argue that the lower court's ruling should be set aside because it was based on the now overturned Guardall Securities Group Limited v. Reinford Kabwe1 case. That the lower court dismissed the application to substitute the Respondent due to the passage of one year, which it incorrectly interpreted as barring its jurisdiction. The Appellants urge the court to set aside J8 this ruling and allow the substitution of Ahmed Al-Khatib Investments Limited as the proper defendant. 4.14 The Development Bank of Zambia v. Sunvest Limited5 case is called in aid where the Supreme Court expressed disapproval of parties starting multiple procedures and actions on the same subject matter. That this strengthens the Appellants' argument against allowing a multiplicity of actions. 4.15 We have been referred to B.P. Zambia Pie v. Interland Motors Limited, 6 where the court warned that the administration of justice could be undermined if different judges render conflicting decisions over the same subject matter. This supports the argument that substituting the correct party would avoid the risk of inconsistent judgments. 4.16 The Appellants state that the only way to avoid multiplicity of actions and to enforce the lower court's judgment is to substitute Concorde Construction for Ahmed Al-Khatib Investments Limited. This substitution would ensure that the Appellants can enforce the lower court's decision against the correct entity. 4.17 Further, that the Respondent falls into the affected and interested parties category. Therefore, they pray that the Respondent be J9 joined or substituted to handle the appeal and avoid unnecessary procedural complications. 4.18 They urge the court to set aside the lower court's judgment and to rule in favour of the Appellants, following their request to substitute the correct Respondent. 5.0 RESPONDENT'S ARGUMENTS 5.1 The Respondent did not file any heads of arguments despite being served with the record of appeal and heads of argument. 6.0 HEARING OF THE APPEAL 6.1 The appeal came up for hearing on 13th October 2024, and the Appellant relied wholly on the heads of argument that have been summarised herein. 7.0 ANALYSIS AND DECISION OF THE COURT 7.1 We have conscientiously considered the record of appeal, the submissions of counsel, and the list of authorities referred to. The burning issue for consideration in this appeal is whether the court below had lost jurisdiction in the matter in accordance with the provisions of Section 19 (3)(b) (i) (ii) of the Industrial And Labour Relations Act. In its judgment of April 8, 2021, the lower court relied on the case of Guardall Security Group Limited v. Reinford Kabwe1 where we had held, inter alia, that failure to JlO render a judgment within one year as prescribed in the Act, implied a termination of jurisdiction on the part of the court to do anything in the matter. 7.2 The Guardall1 case has since been overturned by the Supreme Court case of Citibank Zambia Limited v. Suhayl Dudhia7 where the Apex Court held that: "We accordingly hold that the case of Guardall Securities Group Limited v. Reinford Kabwe is bad law and is hereby reversed. This by necessary implication means that all other decisions based on the Guardall case can suffer no better fate." 7 .3 Given the aforestated, we find merit in the appeal. To avoid doubt, we agree with counsel for the Appellant that the court below still had jurisdiction to entertain the application. From our perspective, the application to substitute the parties is on terra firma. Fortification for this position is drawn from the case of Simbeye Enterprises Limited and Investrust Merchant Bank (Z) Limited v. Ibrahim Ibrahim Yusuf2 relied upon by counsel for the Appellants. This case guides that a party can be joined to an action if the outcome would affect their interests. In this instance, the substitution of a party is on account of their relevance to the dispute as guided by the learned author, Justice Matibini, as J ll referenced from paragraph 4. 7 above. It is important to bring all parties to a dispute in one proceeding. In our considered view, this entails citing the correct legal entity and thus avoiding a multiplicity of actions which is frowned upon by the courts. This principle is elucidated in the Development Bank of Zambia v. Sunvest Limited5 case which we endorse. 7.4 We accordingly set aside the lower court's ruling and allow the plea to substitute the Respondent's name from Concorde Construction to Ahmed Al-Khatib Investments Limited. To borrow further from Dr. Matibini SC's commentary, this will ensure that all necessary parties are brought before the Court to avoid delays, inconvenience, and the expense of separate actions and trials. 7 .5 In light of the foregoing, we find merit in the two grounds of appeal and uphold them. 8.0 CONCLUSION 8.1 The crux of our decision is: 1. The Guardall Securities Group Limited v. Reinford Kabwe1 case was overturned by the Apex Court in Citibank Zambia Limited v. Suhayl Dudhia. Therefore, the court retained jurisdiction. J 12 2. Substitution of the correct Respondent is critical to ensure fairness and completeness in concluding the dispute. 3. The Respondent is substituted from Concorde Construction to Ahmed Al-Khatib Investments Limited. 8.2 Each party shall bear their costs. M. M. Kondolo, SC COURT OF APPEAL JUDGE A. M. Banda-Bobo . uzenga COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE