Samson Chokwiro v Tinairi Doreen Chokwiro and Ors (2023/HP/0076) (13 May 2024) – ZambiaLII

( IN THE HIGH COURT OF ZAMBIA 2023/HP/0076 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CWIL JURISDTCTION) BETWEEN: SAl'"VISON CHOKWIRO PLAINTIFF \)6\,.\C OF ZAAfl::Jl /~~~~, 1 ·1 "~" AN~ . . r\ :_ - ,_,:-! ":r'?~LTINAIRI DOREEN CHO~WIRO \ 1ST DEFENDANT SHORAJCHOKWIRO ----TR_Y_ _ 2ND DEFENDANT LOVENESS CHOKWIRO 3RD DEFENDANT SALUZAI CHOKWIRO 4™ DEFENDANT Before the Honourable Ms. Justice S. Chocho, in Chambers. For the Plaintiff Mr. F. Jvlwaululca, Jvfessrs Legal Aid Board For the 1s t to 4th Defendants: Mr. D. Kalima, A'lessrs D Kalima And Company .. EXTEMPORE RULING Cases referred to: i) ANZ Gri11dlays Bank (z) Limited V Kaoma ii) Musalcanya V Attorney General iii) Amber Louise Guest Milan 'l'ri.bonic V Beatrice Mulako & Attorney General 2010/HP/0344 ... . . UPON Hearing Counsel for the Plaintiff and Defendant. UPON Readin_g the affidavits, skeleton arguments and list of authorities filed by the parties herein. I must state that I am grateful for the detailed Affidavits and Skeleton Arguments filed. , R2 It is clear from the record that the Parties do not dispute that a matter was previously commenced by the Plaintiff herein against one Moses Chokwiro in his capacity as Administrator of the Estate of the Jakama D. Chokwiro (2018/HP/ F169). It is also undisputed that the Consent Judgment entered under the cause 2018/HP/F169 distrib-..ited the estate among the Plaintiff, Defendants and other beneficiaries. The said Consent ,Judgment was and has not been appealed against. I note from the Plaintiff's affidavit in opposition that he believes that the bar in in dispute is sitting on the l acre awarded to him, hjs siblings and his mother in the said Consent Judgment. This in fact is the main claim of his writ and statement of clailn dated 20th January, 2023. I have considered all the authorities relied on by the parties. I am of the considered opinion that in fact the current action is estopped byres judicata. The claims of the Plaintiff are misguided and are re-litigation of the claims already settled in cause 2018/HP/F169. It is my considered opinion that the Plaintiffs claims ~e best suited as an application for the enforcement of the Consent ,Judgment under cause 2018/!-IP/Fl69. The Plaintiff cannot commence a new case to enforce his right~ under a Consent Judgment before another Court. The law on res judicata is well settled in cases of ANZ GRINDLAYS BANK (Z) LIMITED V KAOMA1, and MUSAKANYA V ATTORNEY GENERAL2• ln the case of AMBER LOUISE GUES'l' MILAN TRIBONIC V BEATRICE MULAKO & ATTORNEY GENERAL 2010/HP/03443 Justice Dr. Patrick Matibini (as he then was) held inter alia. : ,:. . I·•,.\ . • .... ·. I R3 "In order for a plea of res judicata to succeed it must be demonstrated that a judgment should have earlier on been pronounced between the parties." In casu, the parties were duly allocated pieces of land on the estate by Consent Judgment and it follows that any dispute arising from such distribution should be settled in the first action. 1. From the forgoing I hereby order that the Defendant's application has merit. The application is duly granted. 2. The Plaintiffs action is hereby dismissed on point of law. It is an abuse of court process. 3. Costs are hereby granted to the Defendants, to be taxed in default of agreement. Dated the 13th May, 2024 frc.Jo. REPUBLIC OF ZAMBIA .:GH COURT OF ZAMBIA ·--~~~:;;;;;~~~~-~~~~~-· \ 11 3 MAY 2024 ]~ HIGH COURT JUDG S. CHOCHO .J P. 0. BOX 50067, LUSAKA