Total Energies Marketing Zambia Ltd v Sheila Kalubi (Sued in her Capacity as Ministry of President for the Trinity Family Centre) and Ors (2024/HPC/0093) (16 September 2024) – ZambiaLII

IN THE HIGH COURT F 2024/HPC/0093 AT THE PRINCIPAL RE · , N COMMERCIAL DIVISION 1 HOLDEN AT LUSAKA (Commercial Jurisdictiom) J P.O. BOX ~O 57, LUSAKA !'1¥;"'1;1 • ~-- ~ .-.. ..- BETWEEN: TOTAL ENERGIES MARKETING ZAMBIA PLAINTIFF LIMITED AND SHEILA KALUBI (Sued in Her Capacity as 1 DEFENDANT ST Ministry President for Trinity Family Centre). LACTALIS ZAMBIA LIMITED DEFENDANT 2ND ALMACS INVESTMENT LIMITED 3RD DEFENDANT Before Hon. Mr. Justice B.C Mbewe in Chambers Marshal Esther Ng'uni t earch ~d~ocate : Mwiche Ntinda- N dhlovu · o the Plaintiff : Mr. M. Ndalameta of May and Company For the 1st Defendant: Mr. J. Kapila of TMB Advocates For the 2nd Defendant: Mr. E. S Lilanda with Mr. B. Milunga from Messrs. Mulenga Mundashi Legal Practitioners For the 3rd Defendant: Ms. Kasumpa M. Kabalata and Ms. RM. Musampeni of Chalwe and Kabalata Legal Practitioners RULING Cases Referred To: 1. Shenghai International Mining Limited v Component Center Limited SCZ Appeal No. 171/2 00; 2. David Mato Sikanu v The Attorney General SCZ/ 8/ 298/2 014; 3. Indeni Petroleum Re.fining Co. Ltd v Kafco Oil limited, Andrew Bungoni, Silas Mumba and Emmanuel Shikaputo Selected Judgment No. 29 of 2017; 4. African Banking Corporation Zambia Plc v Mubende Country Lodge Limited SCZ Appeal No. 116/2 016; 5. William David Carlisle Wise v E F Hervey Limited (1985) ZR 179; 6. Dominic Mulaisho v Attorney General (2012) ZR 551; 7. RB Policies at Lloyd's v Butler (1949) 2 ALL ER 226 at 229, 230; 8. Board of Trade v Cayzer, Irvine and Co Limited (1927) AC 610 at 628; 9. Royal Trading v Zambia Revenue Authority (2000) ZR 86; 1 0. SP Mwila and Company v BP Zambia Plc (2013) ZR 17; 11. Hilton v Sutton Steam Laundry ( 1946) 1 KB 61; 12. Ronex Properties Limited v John Laing Construction limited and Others (1983) 3 ALL ER 961; 13. Daniel Mwale v Njolomole Mtonga Selected Judgment No. 25 of 2015; 14. Silwamba v Kitwe City Council SCZ Appeal No. 86 of 2000; 15. Development Bank of Zambia v JCN Holdings Limited and Others Appeal 54 of2016; 16. Bilta (UK) Limited v Nazir (No.2) 2015 UKSC 23; 17. Nykredit Mortgaged Bank Plc v Edward Erdman Group Limited (No. 2) (1998) 1 ALL ER 305; R2 18. David Nzooma Lumanyenda v Chief Chamuka (1988-89) ZR 194. Legislation and Other Authorities Referred to: 1. The High Court Act, Chapter 27 of the Laws ofZ ambia; 2. Rules of the Supreme Court of England, 1965, 1999 Edition, Vol. ]· ' 3. The Limitation Act 1939; 4. British Acts Extension Act, Chapter 10 of the Laws of Zambia; 5. Atkins Court Forms Volume 29 at page 252 -253; 6. Catherin Elliot & Frances Quin, Tort Law, 7th Edition; 7. Clerk and Lindsell on Torts; 8. Street on Torts, ] 3th Edition at page 632; 9. John Cooke on law of Torts 9th Ed at page 319; 10. The Lands and Deeds Registry Act, Chapter 185 of the Laws ofZ ambia. Introduction and Background [ 1] This Ruling is delivered on an application by the 2nd Defendant for the determination of this matter on a point of law. pursuant to Order 14A of the Rules of the Supreme Court of England, 1965, 1999 Edition, Vol. 1. The application was filed on 17th April, 2024. [2] The 2nd Defendant seeks the determination of the following questions of law; R3 Whether in terms of the provisions of Sections 2 (1) and 4 l. (3) of the Limitation Act of 1939, the Plaintiffs action as it relates to the 2nd Defendant is statute barred for the reason that the said action has been commenced over 6 years following the accrual oft he alleged cause of action; and Whether the 2nd Defendant, can be held vicariously liable ll. for the conduct, acts or omissions of the 1st Defendant. AND THAT if the above question (a) be answered in the affirmative and question (b) in the negative, then Judgment be entered for the 2nd Defendant against the Plaintiff by dismissing the Plaintiff's claims as relates to the 2nd Defendant and that costs of this application and the whole matter be granted to the 2nd Defendant. The application is supported by an affidavit and skeleton arguments of even date. [3] The Plaintiff filed an affidavit in opposition to the application on 15th May, 2024, supported by an affidavit and skeleton arguments. 2nd Defendant's Arguments and Submissions [4] The affidavit in support of the 2nd Defendant's application is deposed to by one Chricious Michello, Tax Manager in the 2nd Defendant. The affidavit deposes that the 2nd Defendant remained owner of the Remaining Extent of Plot No. 268, Mazabuka fallowing the sale of the Plain tiff's property in 1997. That on 18th February, 2003, the 2nd Defendant R4 accepted an offer to sale a subdivision of the Remaining Extent from the 3rd Defendant. [5] The deponent avers that on 8th July, 2004, the 2nd Defendant entered into a contract for the sale of what was termed as "Sub 1 of Sub A of Stand 268 Mazabuka" to the 3rd Defendant, which it appears to refer to as Subdivision B appearing on Survey Diagram No. 185/2003 exhibited in the contract of sale CM3. That it obtained consent to assign Subdivision B on 23rd July, 2004 and paid Property Transfer Tax thereon [6] The 2nd Defendant's affidavit deposes that this matter was commenced on 6th February, 2024, 20 years after the completion of the transaction. That the Plaintiff's claim against it in paragraph 18.3 of the statement of claim alleges that its offer to the 3rd Defendant is outlined in diagram no. 185 of 2003, depicting land subsumed by the Plaintiff's property, a diagram issued in 2003, which s over 21 years ago. [7] The 2nd Defendant's affidavit deposes that all. right and obligations in relation to this transaction are statute barred as any cause of action arose in 2004 when the transaction over the land was concluded. That the 1st Defendant has occupied the said property since 2007. That it is not connected to or a principal of the 1st or 3rd Defendants. [8] The 2nd Defendant's skeleton arguments argue that the application is laid before Court pursuant to Order 14A rule 1 of the Rules of the Supreme Court of England 1965, ( 1999 Edition), under which the Court has the jurisdiction RS to dispose of a matter (or any claim within the matter with finality) without the need for a full trial upon consideration of questions or points of law or issue raised by a party to the action, or the Court's own motion. [9] The applicant argues that the question of law to be suitable without trial, the determination must hinge on an interpretation of law citing Shenghai International Mining Limited v Component Center Limited (1); herein the Supreme Court held that an application should finally determine all the issues and not hinge on findings of fact. That the supreme Court in the case of David Moto Sikanu v The Attorney General (2); held that this order is employed to determine questions which may bring a matter to an end, without any need for a trial. It is not employed to summarily determine claims which appear to be weak or misconceived. That Atkins Court Forms Volume 29 at page 252 -253, states as follows about Order 14A; "The object of the order is that finality should be achieved at an interlocutory stage. It is therefore fundamental to the question of whether or not an application under Order 14A is appropriate that the determination of the question of law or matter of construction placed before the court should terminate the whole action or some claim or issue contained in the action. The finality of any order made is of course, subject to appeal." [10] That also in Indeni Petroleum Refining Co. Ltd v Kafco Oil limited, Andrew Bungoni, Silas Mumba and Emmanuel R6 Shikaputo (3); the Supreme Court summarized the conditions required before employing Order 14A of the White Book when it held that the following conditions must be met for purposes of employing Order 14A; The defendant must have given notice of intention to 1. defend; The question of law or construction is suitable for 11. determination without a full trial of the action; Such determination will be final as to the entire cause 111. or matter or any claim or issue; and 1v. The parties had opportunity of being heard on the question of law or have consented to an order or judgment being made on such determination. [11] The 2nd Defendant, argues that it entered appearance and filed its defence herein and states that what constitutes notice of intention to defend was stated to be as follows by the Supreme Court in the case of African Banking Corporation Zambia Pie v Mubende Country Lodge Limited (4); when it held that; "In the view that we take what constitutes a notice of intention to defend, in the context of our rules, is the filing of a memorandum of appearance which is accompanied by a defence. It therefore, follows that the filing of a memorandum of appearance with defence is a pre-requisite to launching an application under Order 14A, RSC." R7 [ 12] The 2nd Defendant points out that the claims against it are for the fallowing; a. Damages for negligence and interference with the Plaintiff's operations on Subdivision A of Plot No. 268, Mazabuka; b. An order that he 2nd Defendant is vicariously liable for the actions of the 1st Defendant, and all damages flowing therefrom; and c. Costs of and incidental to the action. [13] The 2nd Defendant argues that it has satisfied the requirements to be heard under Order 14A, the issues for determination of the Plaintiff's claims against it are; a. The statute of limitations in respect of claims for negligence; and b. Whether the 2nd Defendant being a corporate and having no special relationship with the 1st Defendant and 3rd Defendant can be held vicariously liable for the acts or omissions of the said Defendants. This has led to this application and the questions it has asked for determination in [2] above. [14] The 2nd Defendant contends that the Plaintiff's claims for inter alia damages for negligence and interference with its operations on the subject property are statute barred in so far as they relate to it, for being brought outside the six (6) year from the time the cause of action accrued. The Limitation Act 1939 of England, which applies to Zambia by virtue of the British Acts Extension Act, Chapter 10 of R8 the Laws of Zambia. Section 2 ( 1) of the Limitation Act of 1939 provides that; "Limitation of actions of contract and tort and certain other action - 1. The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:- a. Actions founded on simple contract or on tort; b. Actions to recover any sum recoverable by virtue of any enactment other than a penalty or forfeiture or sum by way of penalty or forfeiture." [15] The applicant, argues that the cause of action herein arose in 2004, when the 2nd Defendant sold the subject piece of land to the 3rd Defendant and the Plaintiff is caught up by the Statute of Limitations and cannot be allowed to bring a claim that arose in 2004, over 20 years ago. That the 1st Defendant occupied the property in 2007, and therefore any cause of action against it lapsed in 2013. [16] The 2nd Defendant relies on the case of William David Carlisle Wise v E F Hervey Limited (5); in which the Supreme Court held that; "A cause of action is disclosed only when a factual situation is alleged which contains facts upon which a party can attach liability to the other or upon which he can establish a right or entitlement to a judgment in his favour against the other." R9 That the case of Dominic Mulaisho v Attorney General (6); held as fallows in determining when a cause of action accrues; "The statutory period begins to run immediately on the accrual of the action. That is when the Plaintiff's right to institute a suit arises .... if he brings the suit after the statutory period has run, the defendant may plead the statute of limitation as a defence." In R B Policies at Lloyd's v Butler (7); at 229, 230, the Court held that; "One of the principles of the Limitation Act 1939 is that those who go to sleep on their claims should not be assisted by the Court sin recovering their property. But another equally important principle is that there should be an end to these matters and that there shall be protection angst stale demands." Board of Trade v Cayzer, Irvine and Co Limited (8); at 628, where Lord Atkinson observed that; "The whole purpose of the Limitation Act is to apply to persons who have good causes of action which they could if so disposed, enforce, and to deprive them of the power of enforcing them after they have lain by for the number of years respectively and omitted to enforce them. They are thus deprived of the remedy which they have omitted to use." That the Court in Royal Trading v Zambia Revenue Authority (9), held that the Limitation Act of 1939 does RlO not give the Court any discretion to extend time within which such action shall be commenced. The 2nd defendant also cites the case of SP Mwila and Company v BP Zambia Pie (10), which held that; "This court will not come to the aid of a litigant who has sat on his rights for such a long period of time. The Limitation Act 1939 in section 2 of part 1 provides for a limitation period of six years for all cases in tort and contract. The period runs from the point where the injury or problem was created and not from when it was first discovered." [17] The 2nd Defendant relies on the case of Hilton v Sutton Steam Laundry (11); which held that; "But the statute of limitations is not concerned with merits. Once the axe falls, it falls, and a defendant who is fortunate enough to have acquired the benefits of the statute of limitations is entitled, of course, to insist on his strict rights." The case of Ronex Properties Limited v John Laing Construction Limited and Others ( 12); is relied upon where the Court stated that; "where it is thought to be clear that there is a defence under the Limitation Act, the defendant can either plead that defence and seek the trial of a preliminary issue or in a very clear case, he can seek to strike out the claim on the ground that it is Rll frivolous, vexatious and an abuse of process of the court and support his application with evidence." Donaldson W also stated that; " .... The right course is, therefore for a defendant to apply to strike out his claim as frivolous and vexatious and an abuse of the process of the Court, on the ground that it is statute barred. .. " [1 8] The 2nd Defendant goes on to argue the Limitation Act, with respect to claims for land, citing section 4 (3) of the Act, which provides a 12-year period of limitation for claims for land. The 2nd Defendant cites the case of Daniel Mwale v Njolomole Mtonga ( 13); where the Supreme Court upheld the decision of the High court to the effect that the action for the cancellation of title and rectification of the Lands Register was statute barred having been brought 16 years after the right accrued, this is after the issuance of the title in 1991. It is argued that in the case in casu, the cause of action arose in 2004 when it sold the piece of land subject of these proceedings to the 3rd Defendant who on-sold the said land to the 1st Defendant in 2007. [19] The 2nd Defendant submits that all rights and or obligations relating to the recovery of Subdivision Bas far as they relate to the 2nd Defendant are statute barred for not being brought within 12 years from the date the Plaintiff's claim arose. The action has been brought after 19 years. R12 [20] The 2nd Defendant cites the case of Silwamba v Kitwe City Council (14); "We have very carefully perused through and considered the evidence on record, the ruling of the learned district registrar and learned judge and the appellant's opinion of appeal additional and further additional grounds of appeal and it is quite obvious to us that the action was statute barred at the time of commencing the proceedings. The appeal is therefore a complete waste of time and resource and it is dismissed with the contempt it deserves." The case of Development Bank of Zambia v JCN Holdings Limited and Others (15); the Supreme Court held that; "Also, it is settled law that if a matter is not properly before a court that court has no jurisdiction to make any orders or grant any remedies. This was the position established in Chikuta v Chipata Rural Council. It is clear from the Chikuta and New Plast Industries cases that if a court has no jurisdiction to hear and determine a matter, it cannot make any lawful orders or grant any remedies sought by a party to that matter. Affirming our decisions in the Chikuta and New Plast Industries cases, we hold that since this matter was improperly before Mutuna J, he had no jurisdiction to hear and determine. Also, he had no jurisdiction to make any order or grant any remedy. Consequently, the judgment and R13 the ruling he delivered, which are the subject of this appeal, are null and void. The 2nd Defendant asks the Court to dismiss the claims against it. [21] The 2nd Defendant goes on to argue the law on v1car10us liability, under which the Plaintiff seeks to hold it vicariously liable for the 1st Defendant's conduct, acts or omissions. [22] The 2nd Defendant cites Catherin Elliot & Frances Quin, Tort Law, 7th Edition, as stating the following on vicarious liability; "Vicarious liability arises where there is a relationship between the tortfeasor and the party who becomes vicariously liable which justifies giving the latter responsibility for the acts of the former. In the modem law, this is usually a relationship of employee and employer, and so vicarious liability cases usually involve events which happen at or in connection with work. The principle is sometimes justified by the moral idea that if you have some degree of authority over another's actions, you should bear some responsibility for their mistakes, especially if you profit from their work." It is submitted that vicarious liability is a form of secondary liability citing the case of Bilta (UK) Limited v Nazir (No.2) (16); where the Court held that; "Vicarious liability does not involve any attribution of wrongdoing to the principal. It is merely a rule of R14 law under which a principal may be held strictly liable for the wrong doing of someone else. This is one reason why the law has been able to impose it as broadly as it has. It extend far more widely than responsibility under the law of agency, to all acts done within the course of the agent's employment, however humble and remote he may be from the decision making process, and even if his acts are unknown to the principal, unauthorized by him and adverse to his interest or contrary to his express instructions (Lloyd v Grace Smith & Co (1912) AC 716), indeed even if they are criminal (Lister v Hesley Hall Ltd (2001) UKHL.22)." [23] That the 2nd Defendant is a body corporate separate from the 1st and 3rd Defendants and has no relationship with them that may result in the Court attributing liability to them for the acts of the 1st and 3rd Defendants. The 2nd Defendant asks the Court to dismiss the Plaintiff's claims against it for being statute barred. Plaintiff's Arguments and Submissions in Opposition [24] The Plaintiff's affidavit in opposition to the 2nd Defendant's application filed on 15th May, 2024, is deposed to by one Mdyela Phiri. The affidavit deposes that the deponent 1s Network Development Manager in the Plaintiff company. [25] The affidavit deposes that the Plaintiff is the registered owner of the property Subdivision A of Stand 268 Mazabuka over which it holds a certificate of title No. L643A. The said RlS property was part of Stand No. 268 Mazabuka owned by the Defendant. 2nd [26] That at the time it acquired the said property neither the 1st nor 3rd Defendant were on the land. That it only discovered that the 1st Defendant had erected a church on its land in 2021, when it engaged a surveyor to undertake some works for some developments. The 1st Defendant alleges that she bought the land from the 3rd Defendant, who avers that it bought the land from the 2nd Defendant. The 1st Defendant is a trespasser and has no title to the land. [27] The affidavit deposes that there is no prescribed period of time within which an adversely to or derogation of title of a registered proprietor regardless of a period that a defendant has been in possession or used the land. That the 2nd Defendant was not diligent in the manner that it sold the land. [28] The Plaintiff's arguments 1n opposition aver that the Explanatory Notes in the Limitation Act 1939, state as follows in respect of when a cause of action accrues; "Date on which cause of action accrued. In the case of actions founded on contract, time runs from breach (Gibbs v Guild (1881) 8 OBD 296, per Field J. atp. 302). No separate cause of action accrues in respect of interest on a debt and when the principal becomes barred arrears of interest are barred with it (Elder v Northcott (1930) 2 Ch 422; Digest Supp.) In the case of actions founded on tort, where the tort is actionable per se, time runs in R16 general from its commission, even though the plaintiff may not be aware of the identity of the person who has committed it (RB Policies at Lloyd's v Butler (1949) 2 ALL ER 226 (stolen motor car)), but where the tort is a continuing one or is repeated, it gives rise to fresh causes of action so long as it continues or on each repetition. (Brunswick Duke v Harmer (1849) 14 QB 185; 32 Digest 342, 248); where the tort is actionable only on proof of damage, time runs only from the date of damage. (Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127: 32 Digest 341, 238).)" [29] The Plaintiff argues that the present case has a component based on trespass, citing John Cooke on Law of Torts 9th Ed at page 319, which states that trespass to land is an unjustifiable interference with the possession of land. The tort is committed against possession of land. That as long as the 1st Defendant remains in possession; the tort continues to be committed and is committed afresh each day. [30] That the reckoning of time where the tort of negligence 1s concerned was explained in the case of Nykredit Mortgaged Bank Plc v Edward Erdman Group Limited (No. 2) (17); per Lord Nicholls of Birkenhead at pages 307 - 308, that; "In recent years there has been much litigation over the date of accrual of a cause of action in tort in respect of financial loss caused by professional negligence. The question usually arises in the context of a claim that an action has become time barred, because time normally runs for limitation R17 purposes from the date when the plaintiff's cause of action arose. Accrual of a cause of action; actual damage As every law student knows, causes of action for breach of contract and in tort arise at different times. In cases of breach of contract, the cause of action arises at the date of the breach of contract. In cases in tort the cause of action arises, not when the culpable conduct occurs, but when the plaintiff first sustains damage. This the question which has to be addressed is what is meant by "damage" in the context of claims for this loss which is purely financial (or economic, as it is sometimes described)." [31] The Plaintiff avers that it sustained damage when it conducted a survey of its property to redesign the use of its service station. That in neligence, the requirement is to plead breach of duty, coupled with the damage suffered. That the 2nd Defendant confesses to not having been diligent in its sale to the 3rd Defendant which should go to trial. That it is suffering damage from negligence in not optimizing on increased sales. That the matter has nothing to do with dates when events happened but when the Plaintiff experienced damage. [32] The Plaintiff argues that the Limitation Act yields to the Plaintiffs certificate of title and the fact of being in possession since 2007 is not relevant herein as demonstrated by the case R18 of David Nzooma Lumanyenda v Chief Chamuka (18); which case decided that no rights by adverse possession can be acquired if land becomes the subject of a certificate of title. It is argued that this is by force of Section 35 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia. The Plaintiff avers that a trespasser who uses land for however long does not by that fact alone disposes the true owner. The Plaintiff argues that the 12-year period cited by the 2nd Defendant is reckoned immediately prior to 1965. [33] The Plaintiff argues that simply put, vicarious liability seeks to hold one person accountable for the actions of another. That the proof of a connection or nexus between two persons is what is required and is not limited to employee- employer relationships. That it is the 2nd Defendant who put the 1st and 3rd Defendants on to the property and should as such be held liable for their actions. That there is nothing that would warrant the Court dismissing the claim against the 2nd defendant at this preliminary stage, when the pleadings, affidavit evidence and the 2nd Defendant itself admits having dealings with the 3rd Defendant. [34] The Plaintiff submits that there 1s no statutory bar to proceeding with this action as the tort of trespass 1s continuing and occurs afresh every day. That the damage was sustained in 2021, when time started to run. That there is no adverse possession of the Plaintiff's land in casu. R19 2nd Defendant's Arguments and Submissions in Reply [35] The 2nd Defendant filed skeleton arguments in reply dated 19th August 2024. I have read through carefully and note that the arguments substantially repeat the arguments in support and I shall not set them out herein. Hearing [36] At the hearing, Counsel for the 2nd Defendant, Mr. Lilanda, relied on the documents filed and also augmented to highlight two important issues. The 2nd Defendant argued that in determining this application this Court was urged to look at the reliefs sought against the 2nd Defendant and adopt the quickest method in the resolution of the reliefs which is through this application. [37] Mr. Ndalameta for the Plaintiff, opposed the application relying on the affidavit in opposition and skeleton arguments. In response to the arguments in reply by the 2nd Defendant Counsel addressed the Court as follows; [38] That the 2nd Defendant's reply has purported to place the Plaintiff's opposition as being based on legislation that does not apply in Zambia. That what the Plaintiff has shown is explanatory notes to the Limitation Act 1939, which is applicable in Zambia. [39] That the 2nd Defendant 1n arguing the case of Nycredit Mortgage Bank (17); the last sentence of the quotation distinguishes a claim for negligence based on financial loss. This is what the 2nd Defendants have spent most of the R20 arguments in reply pointing out it was submitted that this is not a case of negligence for financial loss. [40] That in the arguments on vicarious liability, the authority cited by the 2nd Defendant states that vicarious liability arises even under an agency, whereas in this case where both the 1st and 3rd Defendant purport to derive title from the 2nd Defendant, this is sufficient for vicarious liability. Ruling [4 1] I have read the application and carefully considered the arguments and submissions herein and thank Counsel on both sides for their spirited and well researched arguments and submissions. This Court does have the jurisdiction to hear the 2nd Defendant's application as adumbrated by the 2nd Defendant's Counsel. Order 14A, Rule 1 provides as follows; 1. The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that - a) Such question is suitable for determination without full trial of the action; and b) Such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein. R21 2. Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just. 3. The Court shall not determine any question under the Order unless the parties have either - a) Had the opportunity of being heard on the question; or b) Consented to an order or judgment on such determination" [42] The issues for determination are the questions of law posed by the 2nd Defendant, namely; i. Whether in terms of the provisions of Sections 2 (1) and 4 (3) of the Limitation Act of 1939) the Plaintiffs action as it relates to the 2nd Defendant is statute barred for the reason that the said action has been commenced over 6 years following the accrual oft he alleged cause of action; and n. Whether the 2nd Defendant, can be held vicariously liable for the conduct) acts or omissions of the 1st Defendant. Whether the Plaintiff's action as it relates to the 2nd Defendant is statute barred [4 3] The determination of when time begins to accrue has been argued in great detail by counsel on both sides. It is not in dispute that the law setting the statutory period for the limitation of actions is The Limitation Act 1939 of England, a British law which applies to Zambia also by virtue of the R22 British Acts Extension Act, Chapter 10 of the Laws of Zambia and amended by the Law Reform (Limitation of Actions) Act 1939, Chapter 72 of the Laws of Zambia. [4 4] The key issue for determination by the Courts in actions where a party pleads that an action is statute barred is usually the time when the period that decides whether an action is caught up by the statutory period of limitation begins to ran. The case of Dominic Mulaisho v the Attorney General (6), stated; "The statutory time period begins to run immediately on the accrual of the action. That is when the plaintiffs right to institute a suit arises. If he brought the suit after the statutory period has run, the defendant may plead the statute of limitation as defence." [45] In the case of Daniel Mwale v Njolomole Mtonga (Sued as Administrator of the Estate of the Late Siwanamutenge Ka puma Mtonga) v The Attorney General ( 13); put it as follows when it held that; " ... time begins to run when there is a person who can sue and another to be sued, when all facts have happened which are material to be proved to entitle the plaintiff succeed." [46] The parties herein have different interpretations of when time began to ran in respect of the action against the 2nd Defendant with the 2nd Defendant averring that any cause of action against it accrued or arose in 2004 when the R23 transaction over the land with the 3rd Defendant was concluded, when on 23rd July, 2004, it obtained consent to assign Subdivision B and later paid Property Transfer Tax. The 2nd Defendant reckons that 20 years has passed since. The Plaintiff on the other hand argues that the action is based on the tort of trespass which is continuing and occurs afresh every day. That time began to run in 2021 when the damage by it was sustained following its undertaking of an exercise to optimize the use of its land. That the 1st Defendant has no title to the land and there is therefore no adverse possession of the Plaintiff's land. [47] The arguments by the 2nd Defendant do carry a lot of weight to me regarding the fact any cause of action arose from the date that it sold the land to the 3rd Defendant. Taking this argument, the 2nd Defendant argues that any cause of action against it over the land is therefore became statute barred in 2016. I cannot help but agree with the 2nd Defendant that any action against it whether by the Plaintiff or 2nd and 3rd Defendant is statute barred if commenced after 2016. [48] The Plaintiff's claims are for recovery of Subdivision B of Farm 268, Mazabuka by the nullification of the transaction which allegedly conveyed the said land to the 3rd Defendant who sold it to the 1st Defendant, who has been in occupation ever since. The Plaintiff also claims that the action is founded on the tort of trespass, which arguments in my view do carry some weight as against the 1st Defendant who it is agreed is in occupation of the said land and claims ownership thereto. R24 It is very clear to me that the trespass is attributable to the 1st Defendant who admits being in possession as purchaser of the said land, though it has not had the same registered in its name yet. Whether the 2nd Defendant, can be held vicariously liable for the conduct, acts or omissions of the 1st Defendant [49] The Plaintiff's arguments in relation holding the 2nd Defendant being vicariously liable for the acts of the 1st Defendant make interesting as reading and from the arguments and submissions of the parties, it is not in dispute that the doctrine of vicarious liability attaches to a principal who is held liable for the wrong doing of someone under the principal's authority. The authority clearly requires that there be a connection or nexus between the principal and the person causing the breach or act for which the principal is held liable for. The typical instances where this principal is applied are employee- employer and principal agent relationships. [SO] I defer to the quotes by the 2nd Defendant from Catherin Elliot & Frances Quin, Tort Law, 7th Edition, that; «vicarious liability arises where there is a relationship between the tortfeasor and the party who becomes vicariously liable which iusti{ies giving the latter responsibility for the acts of the former. In the modem law, this is usually a relationship of employee and R25 employer} and so vicarious liability cases usually involve events which happen at or in connection with work. The principle is sometimes iusti(ied by the moral idea that if you have some degree of authority over another}s actions, you should bear some responsibility for their mistakes, especially if you profit from their work.}} [51] The case of Bilta (UK) Limited v Nazir (No.2) (16); also cited by the 2nd Defendant, held that; "Vicarious liability does not involve any attribution of wrongdoing to the principal. It is merely a rule of law under which a principal may be held strictly liable for the wrong doing of someone else. This is one reason why the law has been able to impose it as broadly as it has. It extends far more widely than responsibility under the law of agency, to all acts done within the course of the agent's employment, however humble and remote he may be from the decision-making process, and even if his acts are unknown to the principal, unauthorized by him and adverse to his interest or contrary to his express instructions" [52] I have closely looked at and analysed the relationship or connection between the Plaintiff and the 2nd Defendant, which I not eon two (2) fronts. Firstly, it is through the sale of Sub Division by the 2nd Defendant to the Plaintiff. Secondly, it is through the 1st Defendant being in possession of and laying claim to the Sub Division, which it says it R26 bought from the 3rd Defendant who bought the said piece of land from the 2nd Defendant. The Plaintiff alleges that the land that the 1st Defendant purchased is part of the same land which was sold to it for which it has title to and the 1st Defendant is not registered as owner of the piece of parcel of land it lays claim to. [53] It is agreed by the parties that the Plaintiff's property sold to it by the 2nd Defendant is not in dispute. The dispute is over Sub Division B which the Plaintiff alleges is part of its land thereby giving rise to the allegation of trespass by the 1st Defendant which it avers the 2nd Defendant is vicariously liable for. [54] I am of the firm judgment that the claim for vicarious liability against the 2nd Defendant has no basis in fact and the law does not support the said claim as the relationship between the 1st Defendant who is the tortfeasor and the Plaintiff is to me very remote for purposes of establishing if the 2nd Defendant can be said to be the 1st Defendant's principal or acting under its authority. [55] Upon a deep consideration of the facts of the matter it is patently clear to me that on the facts and evidence presented before this Court, I find merit in the 2nd Defendant's arguments that it cannot be held vicariously liable for the 1st Defendant's actions or claims against it. I believe this the 2nd Defendant has established to my satisfaction that the claims against it in so far as its liability is touted to arise out of the 1st Defendant under the principle of vicarious liability is a R27 proper case for disposal on a point of law under Order 14A Rule 1, without the need for a full trial in respect of the 2nd Defendant. [56] I hereby dismiss the Plaintiff's action against the 2nd Defendant and strike out the 2nd Defendant from this action [57] I award the 2nd Defendants costs of this application including costs up to this stage of the proceedings, to be taxed in default of agreement. [58] Leave to appeal is hereby granted. Delivered at Lusaka this 16th day of September, 2024 R28