Module Metrix Zambia Limited v Zambia Legacy Missions International and 3 Ors (2018/HPC/0194) (6 August 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2018/HPC/0194 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BElWEEN: MODULE METRIX ZAMBIA LIMITED PLAINTIFF AND FAMILY LEGACY MISSIONS INTERNATIONAL 1 ST DEFENDANT FAMILY LEGACY MISSIONS ZAMBIA LIMITED 2ND DEFENDANT LIFELINE ENTERPRISES LIMITED 3RD DEFENDANT GREER KENDALL 4TH DEFENDANT Before Hon. Lady Justice Irene Zeko Mbewe For the Plaintiff: Ms. N.Mwila of Messrs Simeza Sangwa & / Associates For the intended 2nd Plaintiff: Mr. Mukuka of Messrs AMC Legal Practitioners For the 1st to 3rd Defendants: Mr. M. Mwenye SC of Messrs Mwenye & Mwitwa Advocates RULING Cases referred to: 1. Gurtner v Circuit [1968] 1 ALL E R 328 2. Mike Hamusonde Mweemba v Kamfwa Obote Kasongo and Zambia State Insurance Corporation Limited [2006] ZR 101 3. Bank of Zambia v Jonas Tembo and Others SCZ Appeal No 24 of 2002 Rl I Page 4. BP Zambia Pie v Inter/and Motors Limited SCZ Judgment No 5 of 2001 5. Development Bank of Zambia, Mary N'cube (Receiver) v Christopher Mwanza and 63 Others SCZ/8/103/08 unreported 6. Citibank Zambia Limited v Suhayl Dudhia SCZ Appeal No 6 of 2022 Legislation and other works referred to: 1. High Court Rules, Cap 27 of the laws of Zambia 2. Rules of the Supreme Court, 1999 Edition 3. Bryan's Black's Law Dictionary, 9th Edition Introduction [1.1] By this summons, the intended 2nd Plaintiff seeks an order for joinder. The application is made pursuant to Order 14 rule 5 High Court Rules, Cap 27 of the laws of Zambia. The application is opposed by the Plaintiff and Defendants herein. [2.0] Affidavit in support [2.1] The supporting affidavit is deposed to by Sam pa Muta le a Chief Operations Officer in the intended 2nd Plaintiff company. He deposes that the Plaintiff commenced an action on 15th May, 2018 against the Defendants claiming inter alia the payment of the sum of US$2,303,045.81 being monies owed to the Plaintiff and its subcontractors by the Defendants for the construction of the Summit Conference Centre Building and associated projects at Legacy Lodge Lusaka as well as direct works carried out by the Plaintiff. [2.2] He deposes that on the 3rd March, 2020 the intended 2nd Plaintiff commenced an action against the Plaintiff and 1st R2 I Page Defendant under cause number 2020/HK/0015 claiming inter alia payment of the amount of US$534,380.59 for works done for the Defendants. [2.3] Further, on 24th January 2022 Judgment was delivered in favour of the intended 2nd Plaintiff against the Plaintiff herein for payment of the amount of US$534,380.59 for work done for the 1st Defendant herein (Exhibit "SM2") [2.4] Further, that the intended 2nd Plaintiff has an interest in this matter as the crux of the cause of action in the matter lies with the claim of payment of the amount of USD2,303,045.81 by the Plaintiff against the Defendants out of which the payment of USD534,380.59 is due to the intended 2nd Plaintiff. [2.5] That the intended 2nd Plaintiff will be directly affected by the result of any Judgment or order that affects the claim and on all the reliefs being sought by the Plaintiff in this matter. [2.6] It is deposed there is an issue that exists to be resolved arising out of the reliefs being claimed in this matter between the Plaintiff, intended 2nd Plaintiff and the Defendants. [2. 7] Furthermore, he is advised by his Advocates and verily believes the same that as a result of the facts stated herein, the intended 2nd Plaintiff has a direct interest in the matter and it is highly necessary it be joined and as such will assist the Court in bringing finality to this action and avoid a multiplicity of actions. I R3 Page [3.0] 1st 2nd and 3rd Defendant affidavit in opposition , [3.1] The application for joinder of the intended 2nd Defendant is opposed by way of affidavit sworn by Mwape Bwalya an Advocate seized with conduct of the matter. In it she deposes that the intended 2nd Plaintiff commenced an action against the Plaintiff and the 1st Defendant in the Kitwe High Court under cause No 2020/HK/0015 (Exhibit "MB1-2"). [3.2] That the 1st Defendant was joined to the proceedings on account of the contract it had with the Plaintiff. Further, there has never been a contractual relationship between the intended 2nd Plaintiff and the 1st Defendant. [3.3] In its suit, the intended 2nd Plaintiff claimed that the Plaintiff had a contract with the 1st Defendant to carry out various works at the summit legacy lodge out of which contract the Plaintiff subcontracted the intended 2nd Plaintiff to inter alia supply, install air conditioning and ventilation equipment. The 1st Defendant entered appearance and filed its memorandum of appearance and defence to the intended 2nd Plaintiff's claim (Exhibit "MB3"-4"). [3.4] The suit under cause No 2020/HK/0015 was determined on the merits after a trial before the Kitwe High Court presided upon by Judge Patel SC and in the judgment dismissed the intended 2nd Plaintiff's claims against the 1st Defendant but I R4 Page entered judgment on admission against the Plaintiff herein (Exhibit "MB5"). [3.5] From the foregoing, the intended 2nd Plaintiff's claim against the Plaintiff and the Defendants were already litigated upon and concluded to their finality under the Kitwe High Court and the intended 2nd Plaintiff has never appealed the said Judgment. [3.6] As regard the intended 2nd Plaintiff's alleged claims against the Plaintiff and 1st, 2nd and 3rd Defendants in this matter, the High Court is functus officio as a decision on the merits was already rendered (Exhibit "MB5"). [3.7] Further, the deponent verily believes that joining the intended 2nd Plaintiff to these proceedings will amount to an abuse of court proceedings as the intended 2nd Plaintiff will be allowed to re-litigate matters that have already been determined by the High Court. In any case, any claims the intended 2nd Plaintiff had, ought to have been raised in cause number 2020/H K/0015. [3.8] Further, that granting this application will greatly prejudice the 1st, 2nd and 3rd Defendants in this cause as the alleged interest and claims of the intended 2nd Plaintiff have been litigated upon and determined and there is also no relationship between the intended 2nd Plaintiff and the 1st, 2nd and 3rd Defendant. RS I Page [4.0] Affidavit in reply [4.1] The affidavit in reply is sworn by Sampa Mutale the chief operations manager in the intended 2nd Plaintiff company. [4.2] He deposes that he is advised the matter is not res judicata. Further, that following the Judgment in the Kitwe High Court the issue of the debt of USD2,303.045.81 between the Plaintiff and the 1st, 2nd and 3rd Defendants was not resolved hence the present action. [4.3] Furthermore, that the intended 2nd Plaintiff was subcontracted st by the Plaintiff to carry out installation services on the 1 and 2nd Defendants property and the sum claimed by the Plaintiff of USD2,303,045.81 in this action includes the sum of USD534,380.59 owed to the intended 2nd Plaintiff as part of the subcontractors as stated in the Plaintiff's claim in this action. [4.4] Furthermore, it is on the basis, the intended 2nd Plaintiff seeks to be joined to this action so that the issue of liability for the works undertaken by the Plaintiff the intended 2nd Plaintiff and other subcontractors is resolved. [4.5] · The deponent is advised by his Advocates and verily believes that this matter is neither an abuse of process nor the Court being functus officio. [4.6] Further, the deponent is advised that the 1st, 2nd and 3rd Defendants will not be prejudiced by this Court granting the application to join the intended 2nd Plaintiff because it will help I R6 Page this Court in bringing finality to this matter and avoid multiplicity of actions. [5.0] Skeleton arguments [5.1] The intended 2nd Plaintiff and the 1st, 2nd and 3rd Defendant filed skeleton arguments and list of authorities. The same shall be referred to in the course of the Ruling. [6,0] Hearing [6.1] At the hearing of the matter on 22nd July, 2025, Counsel for the intended 2nd Plaintiff and 1st, 2nd and 3rd Defendants relied on their respective affidavits, skeleton argument and list of authorities. Counsel for the Plaintiff made submissions on a point of law on privity of contract. [6.2] In augmentation, Counsel for the intended 2nd Plaintiff, and 1st, 2nd and 3rd Defendants made lengthy submissions in support and against the intended 2nd Plaintiff's application for joinder. The same shall be referred to in the course of the Ruling. [7 .0] Law and analysis [7.1] I have considered the affidavit evidence, the parties' respective skeleton arguments, list of authorities and oral submissions. [7.2] The application for joinder is governed by the provisions of Order 14 rule 5 High Court Rules, Cap 27 of the laws of Zambia. The Order provides as follows: R7 I Page "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 result, have not been made parties, the Court or a Judge may adjourn the hearing of the suit to a future 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 case may be. In such case, the Court shall issue a notice to such persons, which shall be served in the manner provided by the rules for the service of a writ of summons, or in such other manner as the Court or a Judge thinks fit to direct; and, on proof of the due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause:" [7.3] The above Order vests this Court with power to join any party to the proceedings. It must either be a person who may be entitled to, or claim some interest in the subject matter of the suit, or who may likely be affected by the result or outcome of the suit. [7.4] The rationale for joinder of interested parties is explained in Order 15/6/8 of the Rules of the Supreme Court, 1999 Edition as follows: "(a) to prevent multiplicity of actions and to enable the Court to determine disputes between all parties to them I RS Page in one action, and (b) to prevent the same or substantially the same questions or issues being tried twice with possibly different results, these objects are achieved by enabling a person not a party to be joined as a third party; under para (2) of this rule these objects are achieved by enabling a person not a party to be added as a party. One important difference is that a non party can himself apply under para (2) of the rule to be added as a party, but he cannot apply under 0. 16, r. 1, to be joined as a third party." [7.5] The law on joinder has been ably articulated by the parties' Counsels as being necessary for the Court to adjudicate upon and settle the questions. Lord Denning MR in the case of Gurtner v Circuit (1l put the test for joinder as follows: "It seems to me that when two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or his pocket, in that he will be bound to foot the bill, then the court in its discretion may allow him to be added as a party on such terms as it thinks fit. By so doing, the court achieves the object of the rule. It enables all matters in dispute to be effectually and completely determined and adjudicated upon between all those directly connected in the outcome .... lt would be most unjust if they were bound to stand idly by watching the plaintiff get judgment against the defendant without saying a word I R9 Page when they are the people who have to foot the bill" [1968 2QB587 [7.6] In the case of Mike Hamusonde Mweemba v Kamfwa Obote Kasongo and Zambia State Insurance Corporation Limited ( 2l, it was held that: "A Court can order a joinder if it 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. " The onus is on the applicant to satisfy the Court that a party ought to be joined to the proceedings for complete determination of all issues in a suit. [7.7] By way of background, the Plaintiff commenced proceedings by way of amended writ of summons accompanied by an amended statement of claim in 2018. The relevant claim for purposes of the application for joinder is as follows: (i) The sum of USD2,303,045.81 for works done. [7.8] In the statement of claim, and to bring context, the Plaintiff is described as a company registered in Zambia and carries out the business as general building, housing and engineering contractor. RlO I Page [7.9] The 1st Defendant has been described as a non-profit corporation duly organised under the laws of the State of Texas, USA and carries on charitable projects for orphans and vulnerable child relief services and youth development projects in Zambia. It is the holder of 1.25% of the shares in the 3rd Defendant. [7.1 O] The 2nd Defendant is a company limited by guarantee incorporated in Zambia. The 3rd Defendant is a private limited company incorporated in Zambia. [7.11] The proposed intended 2nd Plaintiff is a subcontractor. [7.12] Counsel for the intended 2nd Plaintiff in support of its application for joinder argued the intended 2nd Plaintiff has a direct and substantial interest in the subject matter of the action and the joinder will assist the Court in bringing finality to this action and avoid a multiplicity of actions. Further, that the claim the intended 2nd Plaintiff intends to prosecute is tied to the Plaintiff in this action. [7.13] Counsel for the Plaintiff opposed the application for joinder and in making oral submission, stated that the intended 2nd Defendant was not a party to the construction contract between the Plaintiff and 1st, 2nd and 3rd Defendants and therefore the principle of privity of contracts bars it from this suit as the intended 2nd Plaintiff has no interest in the subject matter of the suit. Rll IP age [7.14] Further, Counsel for the 1st, 2nd and 3rd Defendants vehemently opposed the application for joinder on the basis the intended 2nd Plaintiff was aware of these proceedings as far back as 5 years ago and opted to proceed in the Kitwe High Court and therefore waived their right to join the present proceedings. [7.15] It is further argued that the intended 2nd Plaintiff wishes to have a second bite at the cherry to the prejudice of the 1st, 2nd and 3rd Defendants herein. Further, that in the Kitwe High Court Judgment, the intended 2nd Plaintiff failed to prove its claim on the merits against the 2nd Defendant in this matter. In essence the intended 2nd Plaintiff has a Judgment against the Plaintiff herein for the same claim being advanced in this matter and on the same facts. [7.16] The sole issue for determination is whether the intended 2nd Plaintiff should be joined to these proceedings. [7.17] The Plaintiff has sued the 1st, 2nd and 3rd Defendants pursuant to a construction contract in which the intended 2nd Plaintiff was a subcontractor. [7.18] I ask myself what the consequences would be if I do not join the intended 2nd Plaintiff to these proceedings? Differently put, is it possible to proceed with the action unless the intended 2nd Plaintiff is joined to the action? Does the intended 2nd Plaintiff have sufficient interest in the present matter? R12 I Page [8.0] Res judicata [8.1] Before I proceed with the substantive application, the issue of res judicata was brought to the fore by Counsel for the 1st, 2nd and 3rd Defendants. [8.2] Relating to the doctrine of res judicata, instructive is the case of Bank of Zambia v Jonas Tembo and Others (3 where the > Supreme Court held as follows: "The test of res judicata is therefore threefold that is, the cause of action should be the same or that the same point had been decided upon and parties must be the same in the two actions. Further, it must be demonstrated that the plaintiff in the new matter had an opportunity to seek the remedy he now seeks, but for his own fault did not do so." [8.3] Counsel for the 1st, 2nd and 3rd Defendants has argued on two limbs, that the joinder be disallowed as the matters the intended 2nd Plaintiff seeks to bring in this action were already litigated hence the principle of res judicata is applicable, and secondly that the Court is functus officio in relation to the intended 2nd Plaintiff's action. [8.4] In response, Counsel for the intended 2nd Plaintiff argues that the Defendants have mischaracterised the nature of a joinder as the intended 2nd Plaintiff has a direct and substantial interest in the action. Counsel contends that paragraph 3 of the supporting affidavit clearly spells out the claim by the Plaintiff I R13 Page against the Defendants herein which is for works undertaken by the Plaintiff in which the claim is associated with money owed to the same contractors and the intended 2nd Plaintiff is one of the subcontractors. [8.5] Counsel argues that the intended 2nd Plaintiff has a substantial and direct interest in this present action as their claim is tied to the claim by the Plaintiff in this action hence joinder is necessary and desirable. Counsel submits that contrary to Counsel for the 1st, 2nd and 3rd Defendants submission, the joinder will ensure all the parties with a legitimate interest in the outcome are heard bringing the matter to finality. [8.6] I agree with the submissions of Counsel for the 1st, 2nd and 3rd Defendants there is no legal basis that allows the intended 2nd Plaintiff to obtain a second Judgment on the same facts and same claim before different Courts of equal jurisdiction. The intended 2nd Plaintiff slept on its rights as it was aware of the present action. [8.7] Similarly, the Kitwe High Court expressed indignation that there was an action before this Court where the issues are the same, the principal contract is the same and it is between the same parties. The Court will not permit the intended 2nd Plaintiff to re-litigate the same issue. [8.8] Now comes the interesting and rather unusual part. In paragraphs 5 and 6 of the intended 2nd Plaintiff's supporting affidavit for joinder, it avers as follows: R14 I Page "5. That pursuant to the action stated in paragraph 4 above, on the 24th January 2022 Judgment was delivered in favour of the intended 2nd Plaintiff against the Plaintiff herein for payment of the amount of USD$534,380.59 for work done for the 1st Defendant herein. There is now produced and shown to me is an exhibit marked "SM 2" a true copy of a Judgment dated 24th January 2022. 6. That the intended second Plaintiff have an interest in this matter because the crux of the cause of action in the matter herein lies with the claim of payment of the amount of USD$2,303,045.81 by the Plaintiff against the Defendants out of which the payment of USD$534,380.59 is due to the intended second Plaintiff. [8.9] From what I garner, astonishingly, the intended 2nd Plaintiff has referred to the sum of US$534,380.59 as being due by the Plaintiff in the present action and yet Judgment was already entered in this respect. It is clear there is a Judgment in the sum of US$534,380.59 where the 1st Defendant herein admitted its indebtedness to the intended 2nd Plaintiff and Judgment was entered to that effect. However, in the case of the Plaintiff herein, the intended 2nd Plaintiff's claim was heard on merit and dismissed (Exhibit "SM 2"). [8.1 OJ It is rather shocking to say the least that the intended 2nd Plaintiff can attempt to bring a dismissed claim to a different Court of equal jurisdiction. I agree with Counsel for the 1st, 2nd and 3rd Defendants submission that this is an attempt by the R15 I Page intended 2nd Plaintiff to have a second bite at the cherry being dissatisfied with the first outcome. The intended 2nd Plaintiff cannot re-litigate a matter where Judgment was rendered on its merit. [8.12] From the facts herein, I accept Counsel for the 1st, 2nd and 3rd Defendants submission that the application for joinder is res judicata against the 2nd Defendant and Plaintiff herein as the rights of the parties were already determined by the Court under cause No 2020/HK/0015. This brings it within the ambit of the principle of res judicata. [8.13] I find the 1st, 2nd and 3rd Defendants have demonstrated that the intended 2nd Plaintiff had an opportunity to seek the remedy it now seeks but opted to institute other proceedings. In my view, the threefold test espoused in the case of Bank of Zambia v Jonah Tembo and Others has been proved. (supra) [8.14] On the face of it, I am inclined to accept Counsel for the Plaintiff's submission on privity of contract as the intended 2nd Plaintiff has not shown it was a party to the construction contract between the Plaintiff and Defendants herein but a subcontractor. I accept the submission advanced by Counsel for the Plaintiff that the intended 2nd Plaintiff has not shown it has an interest in the subject matter of the action. [8.15] Flowing from the above, I therefore find Counsel for the intended 2nd Plaintiff argument that the intended 2nd Plaintiff be joined to the proceedings to avoid a multiplicity of action and I R16 Page for the Court to determine all the issues in controversy at the same time, untenable. [9.0] Abuse of process [9.1] Counsel for the 1st, 2nd and 3rd Defendant's contention is that the subject matter in the Kitwe suit is the same or similar to this present action. Therefore, the second suit is an abuse of court process. The intended 2nd Plaintiff contends otherwise. [9.2] Counsel for the 1st, 2nd and 3rd Defendants has strenuously argued that the intended 2nd Plaintiff's application is an abuse of court process. Black's Law Dictionary 11th Edition, Bryan A Garner at page 13 defines abuse of process as follows: "the improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process's scope." [9.3] In the case of BP Zambia Pie v lnterland Motors Limited < 4l called in aid by Counsel for the 1st, 2nd and 3rd Defendants the Supreme Court in dealing with the issue on abuse of process held that: "For our part, we are satisfied, as a general rule, that it will be regarded as abuse of process if the same parties re litigate the same subject matter from one action to another from Judge to Judge ... " Whilst in order to prove that there is multiplicity of actions one has to show that when the action is pending other steps are pursued in I R17 Page another matter over the same subject matter and by the same parties. [9.4] It is trite law, that where an issue is a subject matter of litigation before a Court of competent jurisdiction, the parties are required to put forward all arguments, claims or defences which they have in the first case so that all matters are determine. This is because of the public policy dictates that there should be an end to litigation. The Supreme Court has warned against piecemeal litigation as espoused in the case of DBZ, Mary Ncube (Receiver) v Christopher Mwanza and 63 Others <5 )_ [9.5] The court has an inherent jurisdiction to stay or dismiss proceedings which is an abuse of its process. The intended 2nd Plaintiff will not be allowed to join the present suit. The reason is simple. [9.7] During the pendency of the present suit, the intended 2nd Plaintiff filed a writ of summons in the Kitwe High Court in 2020 which was determined and a Judgment rendered. The two actions revolve around works done on the 1st Defendant's property. It is therefore my view, that if the intended 2nd Plaintiff had any relief against the 1st, 3rd Defendants, it should have done so by much earlier but decided to do it in piecemeal by seeking to now join the present action. [9.8] I find that the intended 2nd Plaintiff was well aware of the present action but proceeded to commence an action in the Kitwe High Court. Having failed to obtain a favourable R18 I Page Judgment against the 2nd Defendant herein, is now trying to join the present action. This is clearly forum shopping and an abuse of court process. [9.9] The Court will not fold its hands and condone such conduct which is frowned upon. The claim for payment of US$534,313.59 cannot be raised in this matter as it was already litigated. This is a proper case for the Court to prevents its machinery from being used for the wrong purpose. [10.0] Functus officio [10.1] Having addressed my mind to the legal issues on res judicata, I now come to whether the Court is functus officio. In other words, does the doctrine of functus office come into play following the Kitwe High Court Judgment? The doctrine of functus officio applies where a Court has pronounced itself, adjudicated and disposed of a matter fully. [10.2] From the facts on record, I express the view that the intended 2nd Plaintiff application for joinder is moribund as it already has a Judgment from the Kitwe Court based on similar facts. Therefore, there is no basis to consider the application for joinder as the Court is divested of jurisdiction in so far as the claim of USD539,313.59 is concerned. [10.3] I heed the guidance and resonate with the decision of the Supreme Court in the case of Citibank Zambia Limited v Suhayl Dudhia <5> referenced by Counsel for the Defendants. The case establishes that a Court cannot recreate or I R19 Page reallocate jurisdiction on to itself where another Court of similar jurisdiction has adjudicated. [10.4] After all is said, and turning to the substantive application, I therefore have no jurisdiction to determine the matter on joinder as this Court is functus officio and the application is dismissed accordingly. [10.5] Costs to the Plaintiff and 1st, 2nd and 3rd Defendants to be taxed in default of agreement. I decline leave to appeal. Delivered under my hand this ffh day of August, 2025 IRENE ZEKO MBEWE HIGH COURT JUDGE I R20 Page