Andrew Mulenga Kanyanta and Ors v Mando and Pasi Advocates (Suing as a firm) and Anor (2022/HP/1928) (9 October 2024) – ZambiaLII

.. IN THE HIGH COURT FOR ZAMBIA 2022/HP/1928 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) LICO BETWEEN 4 CO\ lfff o PRINCIPAL ANDREW MULENGA KANYANT 1 ST APPLICANT 0 9 OCT 2024 ~ DALITSO MULENGA KANYANT 2 ND APPLICANT ELLEN KOMBE KANYANTA 3RD APPLICANT REGISTRY J MARK MUMBI KANYANTA 4 TH APPLICANT 0067,LU AND MANDO AND PASI ADVOCATES (Suing as a.firm) l •t RESPONDENT BRIAN KANYA NTA (sued in his capacity as 2ND RESPONDENT Administrator of the estate of the late Racheal Rosemary Kanyanta) Before the Honourable Lady Justice S. Chocho, in chambers. For the Applicant: Mr. C Chilekwa ofM essers CC legal and Company For the 1st Respondent: Mr. M Manda ofM essers Mando and Pasi Advocates For the 2nd Respondent: Mr. B Kanyanta (In Person) RULING Cases referred to: 1. London Ngoma and Others vs. LCM Company Limited and United Bus Company of Zambia Limited (In Liquidation} SCZ Judgment No. 22 o.f 1999. 2. Abel Mulenga and Others v Chikumbi and others (2006) ZR 33. 3. Attorney-General vs. Tall & Another (1995-1997) ZR 54. 4. Stanbic Bank v Micoquiop Zambia Limited Selected Judgement No. 22 of 2018 5. Sampa and Others V Wina (National Chairman For the Patriotic F1·ont) and Another Appeal No. 195 of 2014. R2 6. Bwalya v Mwanamuto Investment Limited and Others (2017) ZMCA 148. 7. BP Zambia PLC v Interland Motors Limited SCZ Judgement No.5/2001. 8. Development Bank of Zambia and Another V Sunvest Limited and Another. 9. Another and Hamalambo V Zambia National Building Society (2016) ZMSC240 10. Molly Pelekamoyo Washington v New Plaza Enterprises Limited CAZ Appeal No. 147 of 2021. Legislation referred to: 1. The Rules of the Supreme Court of England (White Book) 1999 Edition. 2. The High Court Act, Chapter 27 of the Laws of Zambia. 3. INTRODUCTION 3.1. This Ruling is in respect of an application made by the Applicants for joinder of a party, stay of execution and to set aside or vary Order of sale accompanied by a combined affidavit and skeleton arguments pursuant to Order 15 Rule 6(2)(b), Order 47 Rule l(a) and Order 44 Rule 2(4) of the Rule of the Supreme Court of England, 1999 Edition. R3 3. 2. The background of this n1atter as per pleadings on record before this Court, is that by an agreement dated 27th May, 2022, the 2nd Respondent agreed to pay the 1st Respondent the sum of K565,000.00 being costs and legal fees. The same emanating from various Court actions, specifically under causes No. CAZ/08.87/2020, 2016/HP/0327 and 2019/HP/F/0140. Legal costs and interest on Judgement debt was awarded in favour of the 1st Respondent. 3.3. The agreed fees were to be settled within three (3) months of signing the said agreement, that is on/before 27th August,2022. 3.4. The 2nd Respondent did not file into Cou rt, Appearance or Defence, consequently Judgment in default of Defence and Appearance was entered on 17th January, 2023. 3.5. This Court granted the 1st Respondent a Charging Order Nissi on the 5th of May, 2024. 3.6. The Charging Order was made absolute in a Ruling dated 1st June, 2024. 3.7. The Applicants made an application for joinder of a party, stay of execution and to set aside or vary Order of sale accompanied by a combined affidavit and skeleton arguments pursuant to Order 15 Rule 6(2)(b), Order 47 Rule l(a) and Order 44 Rule 2(4) of the Rule of the Supreme Court of England, 1999 Edition on the 5th of March, 2024. 3.8. The Applicants wanting to be joined as Defendants are four in number namely; Andrew Mulenga Kanyanta, Dalitso Beatrice Kanyanta, Ellen R4 Kombe Kanyanta and Mark Mumbi Kanyanta (all beneficiaries of the estate of the late Rachael Rosemary Kanyanta). 4. AFFIDAVIT EVIDENCE 4.1. The Applicants filed a combined affidavit deposed by Andrew Mulenga Kanyanta one the 5th of March, 2024, who deposes that he resides on the subject property (remaining extent of Lot No. 2751/M Lusaka). 4.2. The Applicants aver that they were not notified of the proceedings under cause No. 2022/HP/ 1928 or 2023/HP/ 1186 and further avers that the became aware of the Order for sale under the current action on 12th of February, 2024. 4.3. The Applicants aver that the 2nd Respondent never sought consent to sue or defend any matters and are of the view that the lack of consent is prejudicial to their interests in the estate. 4.4. The Applicants aver that they had a fiduciary relationship with the 2nd Respondent and the 2nd Respondent's failure to defend the claim was in breach of his fiduciary duty of trust. 4.5. The Applicants aver that they have interest in Lot No. 2751/M as they are beneficiaries of the estate of the late Rosemary Kanyanta. 4.6. In opposition, the 1st Respondent filed an affidavit on the 7th of May, 2024 deposed by one Mando Mwitumwa. 4.7. The 1st Respondent avers that the 2nd Respondent actually did inform the Applicants but they elected to ignore. RS 4.8. The 1st Respondent avers that an Administrator of an estate has the authority to defend on behalf of the estate and failure to obtain consent is irrelevant to this action. 4.9. The 1st Respondent further avers that it is the duty on an administrator to pay the estates debts and distribute the remainder to the beneficiaries. The mere fact that the Applicants have an interest in the property does not dissolve the 2nd Respondent of its liability to pay the 1st Respondent. 4.10. the 2nd Respondent filed an affidavit in opposition filed into Court on the 24th of April, 2024. 4.11. The 2nd Respondent avers that meetings were held in consultation with the Applicants under which several proposals were made but rejected by the Applicants. 4.12. The 2nd Respondent avers that he created a WhatsApp group for purposes of sharing information regarding the estate as the Applicants are outside jurisdiction. 4.13. That the Applicants are aware of the proceedings before this Court as this was comrnunicated in a message sent to the Applicants on the 6th of January, 2023. 5. THE LAW 5.1. I have had occasion to review and consider the application, having heard Counsel for the Applicants and the Respondents, read the R6 affidavits, skeleton argun1ents and list of authorities for which I am grateful. 5.2. In making an application to join parties to the matter, the Applicants placed reliance on Order 15 (6) (2)(b)(ii) of the Rules of the Supreme Court of England which provides that: "(2) Subject to tlte provision of this rule at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application. (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 matters in dispute in the cause or matter may effectively and completely be 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 would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter." 5.3. The Applicants submitted that this Court has the jurisdiction to join the Applicants to this matter pursuant to the above cite authority. R7 5.4. They further drew this Courts attention to the case of London Ngoma and Others vs. LCM Company Limited and United Bus Company of Zambia Limited (In Liquidation) SCZ Judgment No. 22 of 19991 and submitted that there is sufficient and binding authority that an interested party can be joined even after judgement. 5.5. The authority in the Supreme Court decision of Abel Mulenga and Others v Chikutnbi and others (2006) ZR 332 was relied on by the Applicants and the Applicants submitted that they have interest in the subject matter of this action as per the requirement in the Able Mulenga case. 5.6. Further reliance was placed on the case of Attorney-General vs. Tall & Another (1995-1997) ZR 543 and submitted that the overriding principle that governs the Court and indeed the parties in such a case as this one is the cause of justice. 5. 7. The Applicants further submitted that the 2nd Respondent seeks to convert his personal legal fees due to his lawyers to legal fees due to the estate and avers that the 2nd Respondents actions are unlawful as the estate is not privy to the contract made between the Respondents for legal services. 5.8. In response, the 1st Respondent submitted that this Court does not have the Jurisdiction to join a party to proceedings after judgment where there is no application for review or appeal and placed reliance RS on the case of Stanbic Bank v Micoquiop Zambia Limited Selected Judgement No. 22 of 20184 • 5.9. The 1st Respondent further subrnitted that there is no useful purpose in joining the Applicants to the proceeding as there is no review or appeal in the present case. 5.10. The 2nd Respondent submitted that the Applicants were aware of the proceedings instituted by the 1st Respondent against the estate and that in order for a party to be joined they need not be aware of the proceedings. They cited the authority in Sampa and Others V Wina (National Chairman For the Patriotic Front) and Another Appeal No.195of20145. 5.11. In making an application for stay of execution , the Applicants submitted that the matter is urgent as the property is at risk of being sold and a stay of sale is necessary in Order to allow the Court to deal with the matter of interest in the application for joinder. 5. 12. The Applicants made the Application pursuant to Order 47(1)(1)(a} of the Rules of the Supreme Court of England which provides as follows; "l} Where a judgment is given or an order made for the payment by any person of money, and the Court is satisfied, on an application made at the time of the judgment or order, or at any time thereafter, by the judg,nent debtor or other party liable to execution- R9 (a) That there are special circumstances which render it inexpedient to enforce the judgment or order, then not withstanding in rule 2 or 3, the Court may by order stay the execution ofj udgement or order. .. " 5.13. The Applicants also brought to the attention of the Court the case of Bwalya v Mwanamuto Investment Limited and Others (2017) ZMCA 1486 ; "It is trite that for a stay of proceedings to be granted there must be special circumstances demonstrated by the Applicant to satisfy the Court that there are good and convincing grounds to warrant a stay pending either an appeal or outcome of any proceedings. Aside from exceptional circumstances to justify the stay of proceedings, merit of the appeal or complaint must be shown and irreparable harm if the stay of proceedings is not granted". 5.14. The Applicants submitted in light of the above authority that they have presented special circumstances to justify the stay of proceedings. 5.15. In reply, the 1st Respondent submitted that Order 48 of the High Court Rules, Chapter 27 of the Laws of Zambia provides for different methods of execution which include charging orders and this Court having granted the charging Order meant that execution is complete and there is nothing to stay. RlO 5.16. The 1st Respondent further subn1.itted that the Applicant has made an application for stay before another Court and this amounts to multiplicity and abuse of Court process. Reliance ·was placed on the cases of BP Zambia PLC v Interland Motors Limited SCZ Judgement No.5/20017, Development Bank of Zambia and Another V Sunvest Limited8 and Another and Hamalambo V Zambia National Building Society (2016) ZMSC 2409 which I have taken note of. 5.17. The 2nd Respondent submitted that this application amounts to a piece meal litigation as the Applicants could have brought up the issue of legal fees in the first action bearing cause number 2022/HPF/576 and that this is a multiplicity of actions and abuse of Court process. 5.18. In making an application to set aside Order to sale, the Applicant placed reliance on Order 44 Rule 2(4) of the Rules of the Supreme Court of England and submitted that the proceedings granting the charging order were a nullity placing reliance on the authority in Molly Pelekamoyo Washington v New Plaza Enterprises Limited CAZ Appeal No. 147 of 202110 in which the Court held; "In view of the <1;forestated, the learned Judge in the Court be low having been ,noved under Order 50 RSC, had no jurisdiction to hear the matter. The proceedings were therefore a nullity. 5.19. In response, the 1st Respondent submitted that the basis of the Courts holding in the Molly Pclekamoyo case was that the Rule used to move Rll the Court was wrong and not necessarily that the Court had no jurisdiction to grant the charging Order. 6. COURTS DECISION 6.1. Having considered the parties sub1nissions, the first question for determination is whether the Applicants have shown sufficient cause to be joined to this action. The answer to this question will determine the other Applicant's applications to stay execution and set aside or vary the sale Order. 6.2. This Court has the jurisdiction to join a party who may be entitled to or claim to have interest in the subject matter to proceedings pursuant to Order 14 Rule 5(1) of the High Court Rules, Chapter 27 of the Laws of Zambia which provides as follows; "5. (1 ) 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 t he 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 R12 a notice to such p ersons, 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". ... 6.3. I am of the considered op1n1on that the case of Stanbic Bank v Micoquiop Zambia Limited Selected Judgement No. 22 of 2018 is instructive on whether a party can be joined to proceedings after Judgment. It was held in the Stanbic case as follows; "We are also of the view that the London Ngoma case was dealing with a matter on appeal while in the current appeal there was no appeal or review after the judgment. There is therefore considerable force in the appellant's argument that the process for joinder should really have been set in motion at or before the hearing of the suit. In other words, the responden' t sho' uld have applied earlier 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 ju.dgment was delivered' as was decided in the . . Tall case. The difficulty we have with this argument by the respondent's argument in relation to the appellant's first R13 ground of appeal is that an action usually terminates with the delivery of the judgment and enforcement of the judgment unless, of course, there is an appeal or an application for review none of which ltappened in the present case. It cannot therefore be possibly argued that an action should be open ended as litigants are expected to be vigilant in asserting ' their rights". 6.4. The applications before me are post Judgment and as the court record will show, there is no application for review or an appeal in the instant case. 6.5. The rationale behind j~inirig a party to proceedings is to give the party an opportunity to make the relevant applications they intend to rnake and allow the matter to be heard on merit. In casu the same was heard and determined. In fact, the action arose from an agreement on costs executed by the parties. 6.6. I am of the considered opinion that the Respondents have provided sufficient proof to show that the Applicants were aware of the proceedings before this Court and the various other matters as concerns the estate and between the beneficiaries but the Applicants elected to sleep on their rights and were not vigilant in asserting their alleged rights/interests. 6. 7. I retaliate the position in the Supreme Court decision of Stanbic Bank v Micoquiop Zambia Limited Selected Judgement No. 22 of 2018 Rl4 • that were there is no appeal or application for review, there is no basis for joining a party to proceedings which are at an end. 6.8. Based on the above decision, the application for joinder fails. 6.9. The applications to stay execution and set aside or vary Order for sale are ther efo re rendered academic and otiose. 7. CONCLUSION 7.1. In light of the foregoing, the Applicants application to be joined to the action fails on the grounds advanced above and I hereby Order that the application be dismissed. 7 .2. Costs for and incidental to this application are granted to the Respondents to be taxed in default of agreem.ent. Delivered at Lusaka on the 9th Day of October,2024. P.O