Josephat Mushiko and Anor v Akrasi Properties Limited (APPEAL NO. 190/2022) (21 August 2024) – ZambiaLII

/ I I IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 190/2022 HOLDEN AT LUSAKA {Civil Jurisdiction) BETWEEN: JOSEPHAT MUSHIKO 1 APPELLANT ST TWILIGHT LODGE PUB AND GRILL LIMITED APPELLANT 2ND AND AKRASI PROPERTIES LIMITED RESPONDENT CORAM: NGULUBE, MUZENGA AND CHEMBE, JJA. On 13th August 2024 and 21st August, 2024. For the Appellants Mr. I Mulenga, Messrs Iven Levi Legal Practitioners For the Respondent : Mr. D. Mazumba, Messrs Douglas and Partners JUDGMENT NGULUBE, JA delivered the J udgment of the Court. Cases refe rred to: 1. Stanbic Bank vs Microquip Zambia Limited Judgment No. 22 of 2018 2. London Ngoma and others vs LCM Company Limited United Buses ofZ ambia Legislation referred to: 1. The Constitution of Zambia Chapter 1 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 This is an appeal against a Ruling of the High Court delivered by Kamwendo, J. on 11 February, 2022. By that Ruling, the court's decision was that it was functus officio and declined the interested parties (the appellants herein) application for joinder. 2.0 BACKGROUND 2.1 The background to this appeal is that the first appellant is the registered owner of property number CHILI/ LN 100000000611, Chililabombwe, which is a lodge and it was run by the second appellant, in which the first appellant is a Director. 2.2 In April, 2020, bailiffs went to the said lodge with a writ of possession that was issued by the High Court and they removed furniture and other goods and locked up the premises. After conducting a search at the High Court, the appellants discovered that a Judgment was delivered by the Kitwe High Court (Kamwendo. J) on 1 February, 2020. 2.3 The appellants were not parties to this action and they sought an order of stay of execution of the High Court judgment and further sought to set aside the said judgment on the basis that it was made in the absence of parties. The court granted an order -J2- for stay of execution and in its Ruling dated 11 February, 2020, the court declined to join the appellants to the proceedings as the application had come very late since the court had already rendered its judgment and was therefore functus officio. 2.4 The court went on to state that there was no appeal before the Court of Appeal to merit an application for joinder. The application was accordingly dismissed. 3.0 THE APPEAL 3.1 The appellants were dissatisfied with the decision of the lower court and appealed to this court, advancing three grounds of appeal couched as follows1. The learned High Court Judge erred in law and fact when he held that the appellants could not be joined to the proceedings after Judgment when they were not aware of the proceedings that led to the said judgment which judgment directly affected their proprietary rights in property Number CHILI/LW1000000006/1 registered in the first appellant. 2. The learned High Court Judge erred in law and fact when he held that the case at hand falls on all fours with the case of Stanbic Bank vs Micoquip when the two are distinguishable. 3. The learned High Court Judge erred in law and fact when in his global discourse of the whole application ignored the law of natural justice and the Constitution -J3- of Zambia which frowns upon deprivation of property without the due process of the law as the appellants were not made parties to the matter which led to the Judgment that ordered the possession of the said CHILI/LNl 000000006/l by the respondent. 4.0 THE APPELLANT'S ARGUMENTS 4.1 The appellants argued grounds one, two and three together. It was submitted that Article 11 of the Bill of Rights of the Constitution of Zambia provides for the protection of fundamental rights, which include protection for the privacy of one's home and other property and from deprivation of property without compensation. It was argued that the appellants should have been given an opportunity to be heard as their rights and interests were affected by the decision of the lower court in this matter. 4.2 It was contended that although the appellants were not parties to the case until the judgment was delivered by the lower court, and only learned about the judgment much later, their application to join the proceedings post-judgment, should have been considered favourably. 4.3 It was argued that denying the appellants an opportunity to join the proceedings would be denying them justice and protection -J4- from deprivation of property. We were urged to allow the three grounds of appeal and allow the appeal in its entirety. 5.0 THE RESPONDENT'S ARGUMENTS 5.1 Responding to grounds one, two and three, the respondent's counsel submitted that the lower court correctly used its discretion in not joining the appellants to the proceedings by relying on the case of Stanbic Bank vs Microquip Zambia Limited1 where the court stated that- "The Appellant has gone to great length to explain the London Ngoma case and even suggested that it was wrongly decided. We take the view that the London case was correctly decided given the circumstances and in terms of Rule 67(1) of the Supreme Court Rules Cap 25 which provides for joinder when an Appeal is called for hearing. We also take the view that the London Ngoma case was dealing with a matter on appeal which in the current appeal there was no appeal or review after the judgment. There is therefore considerable force in the Applicant's argument that the process for joinder should really have been set at or before the hearing of the suit. In other words, the Respondents should have applied either to join the Appellant so as to enable the appellant to defend itself during the proceedings. At any rate, the application should have been made before judgment was delivered as was decided in the tall case." -JS- 7 .0 CONSIDERATION AND DECISION 7.1 We have considered the appeal together with the arguments advanced in the respective heads of argument and the authorities cited. 7.2 We have also considered the record of appeal and the Judgment by the learned Judge in the court below. The major question raised in this appeal is whether the lower court was on firm ground when it declined to join the appellants to the proceedings after Judgment was delivered. The appellants' main contention is that they should have been joined as parties to the matter post judgment because they have an interest in the matter and will be affected by the judgment of the lower court. 7.3 The respondent on the other hand contends that the lower court was on firm ground when it declined to join the appellants to the proceedings as the first appellant was a party to the proceedings in the lower court as he was the third defendant, although his name was misspelt. 7 .4 We are of the view that an application for j oinder can be granted at any stage of the proceedings on such terms as the court thinks just. Any person who may be affected may be joined to a matter if in the opinion of the court it would be just and convenient. -J7- 7.5 In deciding whether or not to join a party to the proceedings, the court must be guided by the interest of justice. Joinder may be granted even after judgment has been delivered. The case of London Ngoma and others vs LCM Company Limited United Buses of Zambia2 is authority on this. The court does not simply grant or deny a joinder, but takes into consideration all the circumstances of the case. 7.6 In the present case, we are of the view that it is in the interest of justice to order joinder of the appellants to the proceedings so that they can have an opportunity to be heard in this matter. 8.0 CONCLUSION 8.1 The net result is that the appeal succeeds. We order that the appellants be joined to the proceedings post judgment as prayed. We further order that costs be in the cause. P.C.M NGULUBE COURT OF APPEAL JUDGE ............~ .0..4f. .......... . .................... ~ .......... . K. MUZENGA Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J8-