Bentley Kumalo and 13 Ors v Jaulani Mtine and Ors (2023/HP/1756) (18 December 2024) – ZambiaLII

Rl 2023/HP/1756 PLAINTIFF AND JAULANI MTINE 1st DEFENDANT EVE BANDA NKUMBULA 2nd DEFENDANT MUKWANDICHIBESAKUNDA 3rd DEFENDANT MWIINDWA SIAKALIMA 4th DEFENDANT RAPHAEL KAPILA 5th DEFENDANT DEFENDANT HINGUUMA HANDIA 6th ANDREA MWALE 7th DEFENDANT DEFENDANT LUCKY BEENE gth STANBIC BANK ZAMBIA LIMITED RETIREMENT 9th DEFENDANT BENEFIT SCHEME BEFORE HON MRS JUSTICES. KAUNDA NEWA IN CHAMBERS THIS 18th DAY OF DECEMBER, 2024 For the Plaintiffs : Mr M. Mukande, Messrs M.L Mukande and Company For the Defendants · Mrs N. Simachela and Mrs N. Dimingo, Messrs Nchito & Nchito RU LI NG CASES REFERRED TO: 1. Mullins vHowell 187911 CH D 763 2. Lusaka West Development Company Limited B.SK. Chiti (Receiver) Zambia State Insurance Corporation v Turnkey Properties Limited 1990 SJ 3. Zambia Seed Company Limited v International Chartered (PVT) Limited SCZ No 20 of 1999 4. Bank of Zambia v Jonas Tembo and others 2002 ZR 103 5. Hamalambo v Zambia National Building Society Appeal No 64/2013 6. Maureen Simpemba v Abraham Kamalamba and Chibwe Malipenga 2013 Vol 2 ZR 279 R2 7. Desmond Banda and 12 others v Phestina Chisuwa Appeal No 85/2016 8. Bishop Emmanuel Milingo v Zambia Helpers Society and another 2018/HP/1455 I 9. Jonathan Van Blerk v The Attorney General and others SCZ/8/03/2020 LEGISLATION REFERRED TO: 1. The Rules of the Supreme Court of England, 1965, 1999 Edition OTHER WORKS REFERRED TO: 1. Halsbury's Laws of England, 4th Edition Re-issue, Volume 26 2. Zambian Civil Procedure: Commentary and Cases, by Patrick Matibini, Lexis Nexis, 201 7 1. INTRODUCTION 1.1 With a view to challenge the commencement of these proceedings, Jaulani Mtine and the other Defendants herein, on 12th September, 2024, filed summons to dismiss the action for being an abuse of the Court process, and for being res judicata. The application was made pursuant to Order 18 Rule 19 (1) (d) of the Rules of the Supreme Court of England, 1965, 1999 Edition and was supported by an affidavit and a List of Authorities and Skeleton Arguments in support. 1.2 In opposition, Bentley Kumalo and the other Plaintiffs filed an affidavit in opposition and a List of Auth orities and Skeleton Arguments in opposition on 10th October, 2024. 2. BACKGROUND 2.1 Bentley Kumalo and the others commenced this matter on October, 2023, by Writ of Summons which was 4 th R3 accompanied by a statement of claim and the other requisite documents, seeking: I An Order to set aside the Consent Order of 3rd March) l. 2021 on the ground that the same was obtained by fraud by Jaulani Mtine and the others emanating from falsified remittances of pension deductions for Bentley Kumalo and the others) salaries and the employers) contributions paid into the Retirement Benefit Scheme)· ii. An Order that Bentley Kumalo and the others annual pension statements showing all the remittances and the balances in the remittances and the balances in the Retirement Benefit Scheme be produced and availed to them)· iii. An Order for the recalculation of the total value of Bentley Kumalo and the others pension benefits due)· iv. An Order that the total value of the unaccounted for pension deductions and pension contributions be paid out to Bentley Kumalo and the others in accordance with the Pension Rules; v. Interest on all the amounts found due from the dates of retirement until the date off ull and final payment; vi. Any other relief that the Court may deem fit in the circumstances; vii. Costs. 2.2 Jaulani Mtine and the others entered appearance and filed their defence and the other documents on 10th October, 2023. Orders for Directions were thereafter issued, and the R4 application which is subject of this Ruling was subsequently filed. I 3. SUBMISSIONS AT THE HEARING SUBMISSIONS BY COUNSEL FOR JAULANI MTINE AND THE OTHERS 3.1 Counsel for Jaulani Mtine and the others in making the application, relied on the affidavit which was filed in support of the application, together with the List of Authorities and Skeleton Arguments in support. 3.2 By way of augmenting, Counsel stated that the parties were previously involved in litigation arising from their pension dues after exiting employment. The submission was that the said matter was under cause number 2013/HP/141 where Hon Lady Justice S.M. Wanjelani delivered Judgment on 21st May, 2020. 3.3 Further submission was made, that Hon Lady Justice S.M. Wanjelani found that Bentley Kumalo and the others were only entitled to the employers' contributions that were made into the Pension Scheme. It was also stated that there was no appeal against that Judgment. 3.4 Then thereafter, the parties entered into discussions, which culminated into a Consent Order, which was filed into Court on 21st February, 2021, and which the Hon Judge signed on 3rd March, 2021, which was exhibited as 'EKl' to the affidavit which was filed in support of the application. 3.5 Counsel further stated that the Consent Order was akin to an assessment of the amounts that were due to Bentley .Kumalo and the others. Her contention was that the Consent RS Order could not be set aside by means of a fresh action, adding that the action was an abuse of the Court process. I 3.6 Addition was made, that if the Consent Order could be set aside by commencing a fresh action, which was denied, then the parties would land back to the position in which they were in, when the Judgment was delivered on 21st May, 2020. 3.7 The further submission was that Bentley Kumalo and the others seek a recalculation of their benefits, which was an abuse of the Court machinery, as all the matters relating to their entitlements were dealt with in the previous action, as all the reliefs as pleaded were resolved in that action. Thus, the issues are res judicata. 3.8 On that premise, Counsel's submission was that the action is misconceived and ill fated. She prayed that the said action be dismissed with costs to Jaulani Mtine and the others. SUBMISSIONS BY COUNSEL FOR BENTLEY KUMALO AND THE OTHERS 3. 9 In response, Counsel stated that they had filed an affidavit in opposition and a List of Authorities and Skeleton Arguments in opposition on 10th October, 2024, on which they relied. REPLY BY COUNSEL FOR JAULANI MTINE AND THE OTHERS 3.10 It was stated in reply, that the earlier submissions were reiterated. R6 4 . DECISION OF THIS COURT 4.1 I have considered the application. Order 18 Rule 19 (1) of a the Rules of the Supreme Court of England, 1965, 1999 Edition is as follows in provision: "(l) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that - (a) it discloses no reasonable cause of action or defence, as the case may be; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court; and may order the action to be stayed or dismissed or Judgment to be entered accordingly, as the case may be." 4.2 Enock Kabwe in deposing to the affidavit which was filed in support of the application, stated that Bentley Kumalo and the others in cause number 2013/ HP/ 1641 sued Stanbic Zambia Limited on 6th November, 2013, claiming: Declaration that the Plaintiffs are still members oft he 9th 1. Defendant by virtue of the contributions that still stand to their credit in the pension fund; n. Payment off ull pension funds; R7 iii. In the alternative, refund of employees' contributions to be computed together with compound interest from • respective dates of exi,t from employment; iv. Any other relief the Court may deem fit; v. Costs. 4.3 It was also his averment, that an application was made on 25th April, 2014, to dismiss the matter for being statute barred, as the cause of action was commenced more than Seventeen (17) years after it had accrued, as the Plaintiffs left employment between 1995 and 1997. However, the Hon Judge dismissed that application, stating that it did not apply where there was fraud or concealment. 4.4 Then on appeal to the Supreme Court, that Court found that the action was statute barred, but that the Plaintiffs could pursue their claims against the trustees. That was how the pleadings were amended, with the Plaintiffs proceeding against the present defendants as trustees of the Pension Scheme. 4.5 Further averment was made, that at trial, the parties agreed to proceed by way of statement of agreed facts and issues for determination, which was exhibited as 'EKl'. Enock Kabwe deposed that in paragraph 12 of the said Statement of Agreed Facts and Issues for Determination, Bentley Kumalo and the others duly accepted that at the time of their exit from employment, Stanbic Zambia Limited Retirement Benefit Scheme refunded their contributions which were made into the Retirement Scheme during their employment. R8 4.6 It was also stated that Hon Lady Justice S.M. Wanjelani in the Judgment dated 21st May, 2020, which was exhibited as '.EK2', made the following findings as regards the employer's II contributions: (a) That the Plaintiffs that retired prior to the enactment of the Pension Scheme Regulation Act 1 996 were not entitled to the employer's contributions as it was retained by the trustees; (b) That only those Plaint iffs who left the employ of the Bank after the enactment of the Pension Scheme Regulation Act 1996 were entitled to a full refund of the employer's contribution. 4.7 Contention was made that Bentley Kumalo and the others did not appeal the Judgment. It was also deposed that following the Judgment of the Court, Stanbic Zambia Limited Retirement Pension Benefit furnished Bentley Kumalo and the others with its' computation of what was due to them as the employer's contribution. He stated that Bentley Kumalo and the others accepted the said computations, and this culminated in the execution of a rd Consent Order on 23 February, 2021, which was perfected on 3rd March, 2021. 4.8 Th.e said Consent Order was exhibited as 'EK3'. Enock Kabwe averred that Bentley Kumalo and the others commenced this matter on 4th October, 2023 seeking to set aside the Consent Order on the ground of fraud which allegedly emanated from falsifying remittances of the pension contributions from Bentley Kumalo and the others R9 salaries and the employers' contributions which were paid into the pension scheme. 4.9 It was also stated that Bentley Kumalo and the others claim that they should be shown their annual pension statements which reflect all the remittances and the balances in the retirement scheme, and that the total value of their pension benefits should be recalculated. However, the issue regarding Bentley Kumalo and the others' employee contributions was settled in the Statement of Agreed Facts, and the Judgment of the Court in cause number 2013/HP / 1641. Further, Bentley Kumalo and the others did not appeal that Judgment. 4.10 It was also stated the question of the employer's contributions to the pension scheme, was dealt with by way of the Consent Order which was dated 3rd March, 2021, in which Bentley Kumalo and the others, accepted through their Counsel, the computations of that portion and the payment thereof, including the payment of legal costs as full st and final settlement of the Judgment dated 21 May, 2020. 4.11 In the List of Authorities and Skeleton Arguments in support, the case of Hamalambo v Zambia National Building Society f5J was cited, as where the Court interpreted what res judicata is. Further reliance was placed on the decision in the case of Bank of Zambia v Jonas Tembo and others f4J. 4.12 The argument was that the question of Bentley Kumalo and the others being entitled to the employee contributions which were made to the Pension Scheme, was settled by the RlO Judgment which was delivered 1n cause number 2013 /HP/ 1641. It was further stated that in that matter, the • Court found that Bentley Kumalo and the others had received the employee contributions to the Pension Scheme at the time they left employment with Stanbic Bank Zambia Limited between 1995 and 1997. 4.13 Argument was also made, that the Court held that Bentley Kumalo and the others were only entitled to the employer's contributions which were standing to their credit in the Pension Scheme. Thereafter, the employer's contribution was computed, and it was paid to Bentley Kumalo and the others by the Consent Order. 4.14 Thus, the claim that the annual pension statements and the balances be produced, that the value of the pensions be recalculated, and that the total value of the pension deductions and contributions be paid out to Bentley Kumalo and the others, were all issues that were dealt with in cause number 2013/HP/1641. 4.15 On the matter being an abuse of the Court process, the learned author Patrick Matibini in the book, Zambian Civil Procedure: Commentary and Cases, Lexis Nexis 2017 at page 501 was quoted, as stating that Court process must be bona fide and properly issued, and must be used to vindicate a right, and not to cause unnecessary expense or harassment going beyond that normally encountered in properly conducted litigation. R11 4.16 Thus, it is an abuse of the Court process, to pursue an action which has been dealt with by way of full and final settlement between the parties. 4.17 It was argued, that in this matter, the Court process was not being used bona fide, as Bentley Kumalo and the others did not disclose that there was a Court Judgment in cause number 2013 /HP/ 1641, which restricted their entitlement from the Pension Scheme, to only the employer's contribution, and that the Judgment clearly stated that Bentley Kumalo and the others had already in fact received the employee contributions, and they did not appeal that Judgment. 4.18 In the alternative, it was argued that Bentley Kumalo and the others are seeking additional reliefs aside from setting aside the Consent Order, which is an abuse of the Court process, as there was likely to be two conflicting High Court decisions on the same issues. 4 .19 Reliance was placed on the case of Desmond Banda and 12 others v Phestina Chisuwa f7J where the Supreme Court noted that there was absurdity in the Appellants commencmg a different action, as the Judgment in the earlier case remained unchallenged, and could still be executed. Therefore, even if the Appellants obtained a Judgment in the new action, the Judgment in the earlier action could still be enforced against them. 4.20 It was contended that in this matter, even if the Consent Order was set aside, the portion of the Judgment in cause number 2013/HP/1641 which. stated that Bentley Kumalo R12 and the others were only entitled to the employer's contributions to the pension scheme, was not challenged by way of appeal, and it remained binding on them. 4.21 Thus, the computations were done based on the Judgment, and Bentley Kumalo and the others agreed to the said computations, and they were paid. 4.22 Bentley Kumalo on the other hand, in the affidavit in opposition, whilst agreeing that there was a Judgment which was delivered in cause number 2013/HP / 1641, averred that they were not shown the computations of their contributions to the Pension Scheme. However, Ms. Ndalama one of the Plaintiffs' herein, obtained tabulations from Professional Insurance Corporation, which showed discrepancies, as the tabulations were reflected from 1989-1997, instead of 19761997, which was exhibited as 'BKl '. 4.23 He further deposed that Bentley Kumalo and the others on 19th March, 2021, through their advocates wrote a letter to J aulani Mt ine and the other's advocates, requesting for their statements, despite the Consent Order having been signed on 3rd March, 2021. Then in response, as shown on exhibit 'BK3', the advocates for Jaulani Mtine and the others stated that the matter was closed, as it was settled by way of Consent Order between the parties. 4.24 That was how, on April, 2021, Bentley Kumalo and the 5 th others' advocates, wrote to the Managing Director of Stanbic Bank Zambia requesting for the schedule of pension contributions from January, 1976 to September, 1997, as shown on exhibit 'BK4'. Rl3 4.25 He deposed that the response that was given, was that if Bentley Kumalo and the others had any queries, they should • be directed to the advocates for Jaulani Mtine and the others. Bentley Kumalo stated that Jaulani Mtine and the others had refused to avail them their individual statements which depicted all their pension contributions from January 1976, when they joined the Bank to September, 1997 when they exited. 4.26 The case of Zambia Seed Company Limited v International Chartered (PVT) Limited f3 J was cited as authority for the commencement of actions to set aside a Judgment which was obtained by consent. 4.27 Also relied on, was the case of Lusaka West Development Company Limited B.SK. Chiti (Receiver) Zambia State Insurance Corporation v Turnkey Properties Limited f2 J stating that it held that a Judgment that is obtained by fraud or mistake may be set aside. 4.28 The case of Bishop Emmanuel Milingo v Zambia Helpers Society and another f8J was also said to have held that a Judgment that is obtained by Consent may be set aside on the grounds of fraud, illegality, misrepresentation or any other grounds that vitiate a contract. 4.29 Further argument was made, that Bentley Kumalo and the others were not given the computations by the Bank even at the time that the Consent Order was procured. The contention was that Bentley Kumalo and the others were informed by their advocates that they would be given their Rl4 statements. However, this was not done even after the • Consent Order was executed. DECISION 4.30 A perusal of the Writ of Summons shows that Bentley Kumalo and the others claim the reliefs which I have set out in paragraph 2.1 above. For the avoidance doubt, those reliefs are: i. An Order to set aside the Consent Order of 3rd March, 2021 on the ground that the same was obtained by fraud by Jaulani Mtine and the others emanating from falsified remittances of pension deductions for Bentley Kumalo and the others' salaries and the employers' contributions paid into the Retirement Benefit Scheme; ii. An Order that Bentley Kumalo and the others annual pension statements showing all the remittances and the balances in the remittances and the balances in the Retirement Benefit Scheme be produced and availed to them; iii. An Order for the recalculation of the total value of Bentley Kumalo and the others pension benefits due; iv. An Order that the total value of the unaccounted for pension deductions and pension contributions be paid out to Bentley Kumalo and the others in accordance with the Pension Rules; v. Interest on all the amounts found due from the dates of retirement until the date off ull and final payment; Any other relief that the Court may deem fit in the circumstances; RlS vi. Costs. lo . . 4.31 From affidavits which were filed support of and In Ill ".: opposition to the application, as well as the List of . Authorities and Skeleton Arguments In support and In opposition, those documents show that the High Court in cause number 2013/HP/ 1641 delivered a Judgment on 21st May, 2020. 4.32 The Court in that matter, found that Bentley Kumalo and the others were paid their (employees' contributions) into the pension scheme at the time they exited employment in 1997. 4.33 The record is also clear, that the Court fou nd that Bentley Kumalo and the others who left the employment of Stanbic Bank Zambia after the enactment of the Pension Scheme Regulations Act were entitled to the payment of the employer's contribution, and that those who left employment prior to the enactment were not, as the contribu tion was retained by the Trustees. 4.34 Thus, those Plaintiffs who left the employment of Stanbic Bank Zambia after the enactment of the Pension Scheme Regulations Act were awarded the employer's contributions which were paid into the Pension Scheme. 4.35 Then from there, a Consent Order was executed on 3rd March, 2021, which set out the amounts that would be paid to Bentley Kumalo and the others as the employer's contributions into the Pension Scheme. 4.36 The fourteen Plaintiffs who were accordingly awarded the employer's contribu tion into the Pension Scheme were Mubagwe Phydelis, Kasonde Edward, Ngu lube Webster, R17 4.40 Pursuant to the Judgment of the High Court, the Consent Ii Order 'EK3' was executed which tabulated the employer's I contributions which were paid to Bentley Kumalo and the others. 4.41 From the claims, as endorsed on the Writ of Summons and statement of claim, the assertion among others, is that Stanbic Bank Zambia Limited falsified the employer's remittances into the Pension Scheme. In paragraph 12 of the statement of claim, allegation is made relating to the particulars of the fraud, using Bertha Ndalama's pension statement, stating that it shows that the contributions which were made during the period 1976 to 1988 and other years were unaccounted for. 4.42 Further allegation is made, that the gross salary as reflected on Bertha Ndalama's pension statement does not tally with the gross salary that was reflected on her payslip. It is also alleged that Bertha Ndalama's contributions are uniform across a Five (5) year period, notwithstanding that her salary increased significantly in the said period. Therefore, the value of the contributions ought to have increased. 4.43 Other averments relating to the fraud, that are made, are that while the Scheme Rules provided that the employee was to contribute Five (5) percent, and the employer Ten (10) percent, the pension statement revealed that the figures that were remitted as the employee and employer's contributions were of equal value. 4.44 Thus, the Consent Order dated 3rd March, 2021 was obtained deliberately and fraudulently. R18 4.45 It is trite that a J u dgment that is obtain ed by Consent, may • be set aside on any of the grounds th at a contract may be set aside. 4.46 Fu rther, the Supreme Court in the case of Jonathan Van Blerk v Attorney General and others (9 held that J Judgment obtained throu gh frau d or collu sion, is universally h eld sufficient reason for vacating su ch a Judgment, either du ring or after th e time at which it was rendered, and opening th e door for another hearing of the matter. 4.47 The Supreme Court guided that the way to challenge a J udgment obtained by fraud, is by commencing a fresh action, and that the action is independent of the main action, as it seeks to challenge the process by which the J u dgment was procured, and not the claims in dispute. They fu rther stated that res judicata cannot be deployed to impugn the proceedings, as what is being impugned is the very process of how that Judgment was obtained. 4.48 It will fu rther be seen that the explanatory notes in Order 59/11/17 of the Rules of the Supreme Court of England, 1999 Edition state that: "There is jurisdiction to set aside a Judgment for fraud on a motion for a new trial, but as a rule an action must be brought for the purpose, and if for special reasons a motion is permitted, the charge off raud must be made with the same particularity as in an action, and as strictly proved, and the same rules apply as to burden of proof and admissibility of evidence. Where it is alleged that R19 a Judgment was obtained by fraud, the appropriate course would normally be to bring a fresh action to set aside that Judgment, because, in such cases, there will usually be serious and difficult issues of fact to be determined, and therefore a first instance Court is the most appropriate forum." 4.49 Thus, it follows that the only claim in such an action which can be sustained, is to set aside the Judgment on the ground of fraud, with the pleadings particularizing the fraud which must be proved to the standard required. 4.50 Halsbury's Laws of England, 4th Edition Re-Issue, Volume 26 in paragraph 560 at page 285 states that; "A Judgment, which has been obtained by fraud either of the Court or of one or more of the parties may be impeached by means of an action which may be brought without leave. ..I n such an action, it is not sufficient merely to allege fraud without giving any particulars and the fraud must relate to matters whichprimafacie would be a reason/or setting aside the Judgment if they were established by proof and not to matters which are collateral." 4.51 The Judgment of the High Court in cause number 2013/HP / 1641, while having found that Bentley Kumalo and the others were entitled to the employer's contributions R20 with interest at the short-term deposit rate from the date • that Bentley Kumalo and the others exited employment to • the date of Judgment, and thereafter at the average commercial bank lending rate until full payment, did not specify whether the same was to be assessed. 4.52 However, it has been seen that a Consent Order was executed on 3rd March, 2021, which the Hon Judge signed, and which Consent Order incorporated the amounts which were payable to Bentley Kumalo and the others, and which are subject of challenge in these proceedings. 4.53 It is also trite and authorities abound, that the only way to set aside a Consent Judgment would be start a fresh action specifically to challenge the consent judgment. The case of Zambia Seed Company Limited v Chartered International (PVT) Limited t3 J is authority for this. 4.54 However, paragraph 21.15 at page 1142 of the book Zambian Civil Procedure: Commentary and Cases, Vol 2 by Patrick Matibini, Lexis Nexis, 2017 states that different considerations apply to setting aside interlocutory Orders. 4.55 The learned author in that regard, states that the general rule is that an interlocutory Order even if approved by the Court may be set aside, where it appears that the consent was given under misrepresentation or from want of materials, provided that the order has not been perfected. 4.56 Reference is made by learned author, to the case of Maureen Simpemba v Abraham Kamalamba and Chibwe Malipenga t6 J which was decided by Hon Mrs. Justice R21 Chisanga as she then was. In that matter, the 1st Defendant applied to dismiss the action for being an abuse of Court .. process, as he had obtained an Order for Judgment on admission against the Plaintiff and the Defendant. 2nd 4.57 The 1st Defendant subsequently took out a Writ of Possession which the Plaintiff applied to suspend. However, the Writ of Possession had already been executed, and could not be suspended, and out of sympathy for the Plaintiff, the 1 Defendant agreed with both the Plaintiff and the 2nd st Defendant to sign a Consent Order, allowing the Plaintiff back onto the property, while the Defendant paid him the 2nd value of the land and the materials that were found on the subject land, when the Plaintiff purportedly bought the land and converted the materials to her use. 4.58 Hon Mrs. Justice Chisanga, while noting the case of Zambia Seed Company Limited v Chartered International (PVT) Limited stated that a Consent Order or Judgment f3J, envisaged by the case, and others that were referred in the arguments before her, pertained to the compromise of an action. She noted that such Consent Order or Judgment is a substitute for a reasoned Judgment or Order of the Court, and it decides the action between the parties for all intents and purposes. 4.59 The Hon Judge opined that in her judgment, it is only Orders or Judgments of a final character that may be set aside by way of a fresh action, and that interlocutory Orders do not fall within that category. R23 ultimately mean that they will have to thereafter proceed • under cause number 2013/HP/ 1641, to determine the • employer's contributions which are due to be paid. 5.3 Thus, the action is not res judicata nor an abuse of the Court process, as the Consent Order that was executed under cause number 2013/HP/1641 on 3rd March, 2021, as regards the amounts awarded as the employer's contributions, is being impugned on the ground of fraud. The application therefore fails, and it is dismissed with costs in the cause. The matter shall come up for a scheduling conference on 14th February, 2025 at 08:45 hours. Leave to appeal is granted. DATED AT LUSAKA THE 18th DAY OF DECEMBER, 2024 S. KAUNDA NEW HIGH COURT JUD