Robert Chimambo v Sefuke (2023/HP/920) (30 January 2024) – ZambiaLII

AND SEFUKE DEFENDANT • BEFORE THE HONOURABLE MRS. JUSTICE M. C. KOMBE For the Plaintiff No-appearance For the Defendant Ms. M. Kopulande - Messrs. Ranchhod Chungu Advocates. • RULING Cases referred to: 1. African Banking Corporation Limited v. Mubende Country Lodge Limited (Appeal No. 116/2016). 2. Abel Mulenga and others v. Mabvuto Adan Avuta Chikumbi and Others (2006) Z.R 33. 3. Konkola Copper Mines v. Nyambe Martin Nyambe & 64 Others (CAZ/08/312/2017). -Rl- 4. Habib Industries Limited v. Amish Industrial Products Limited and Another (2012/HP/ 1427) (Unreported). 5. Attorney General v. Law Association of Zambia (SCZ No.3 of 2008). 6. Carm Investment Limited v. Circolo Italiano Di Lusaka (SCZ/8/204/2015). 7. Concrete Pipes and Products Limited v. Kabimba and Others (SCZ/8/ 146/2015). Legislation and other material referred to: • 1. The Rules of the Supreme Court of England, 199 Edition. This is a ruling on the Defendant's application to raise a preliminary issue to determine: i) Whether the Plaintiff's action against the Defendant is properly before this Honorable Court in light of the fact that the Defendant • has no locus standi or suffident interest in the matter. The Defendant filed into Court an affidavit in support of the application on 18th July, 2023, deposed to by BRIAN ABWINO, an apvocate of Messrs. Ranchod Chungu Advocates, the advocates seized with conduct of this matter. -R2- He deposed that the Plaintiff delivered a writ of summons and statement of claim at No. 8, Los Angeles Boulevard, Lusaka which was the address for Consolidated Advisory Services Limited. That the Plaintiff claimed the following against the Defendant: i) Damages for trespass; ii) Damages for nuisance; • iii) Costs and any other relief He deposed that the Defendant never entered onto the Plaintiff's land and never cut down any trees or vegetation and graded a road on the Plaintiff's land. Consequently, the Defendant never caused any nuisance to the Plaintiff. • It was deposed that the Plaintiff had commenced and served an action against the wrong party and the Defendant had no locus standi in this matter. At the hearing, I proceeded to hear the Defendant's application in the absence of the Plaintiff as I was satisfied that the Plaintiff deliberately stayed away after being duly served with the notice of hearing. -R3- Learned counsel for the Defendant, Ms. M. Kopulande relied on the affidavit in support of the application and the skeleton arguments. In the arguments, counsel referred the Court to Order 14A ::-ulc l(l)a of the Rules of the Supreme Court of England which provides that: "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 thata) Such question is suitable for determination without a full trial of the action ... " Ms. Kopulande also referred co Order 14A Rule 2(3) which prescribes the requirements for employmg the procedure under Order 14A. It provides that: • "The requirements for employing the procedure under this Order are the following: (a) the Defendant must have given notice of intention to defend; (b) the question of law or construction is suitable for determination without a full trial of the action; -R4- (c) such determination will be final as to the entire cause or matter or any claim or issue therein; and (d the parties had an opportunity of being heard on the question of law or have consented to an order or judgment being made on such determination." It was submitted that the Plaintiff brought an action against the • Defendant for trespass and :misance when the DefendanL had never entered or caused any nuisance on the Plaintiff's land. Counsel argued that the Defendant herein lacked locus standi. Counsel further submitted that the Defendant had been wrongly sued and that this was an issue tt.at could be determined without full trial as envisaged in Order 14A R.1le l(l)(a) of the Rules of the Supreme Court. • She also referred to the case of African Banking Corporation Zambia v. Mubende County Lodge Limited (tJ where the Court held that: "In the view that we take, what constitutes a notice of intention to defend, in the context of our rules is the filling of a memorandum of appearance which is accompanied by a defence. It, therefore, follows that filing of a memorandum of appearance with a defence is -RS- a pre-requisite to launching an application under Order 14A, RSC." Ms. Kopulande argued that the Defendant filed a memorandum of appearance and defence and therefore complied with the mandatory prescription to give notice of intention to defend. It was further argued tha':. the court had in a plethora of cases • pronounced itself on the requirement by a party to an action (or one joining an action) to have sufficient interest and locus standi in the matter. Reliance was placed on the case of Abel Mulenga and others v. Mabvuto Adan Avuta Chikumbi and Others!21 where the Court stated that: "As we see it, the question as to whether or not the appellant were entitled to be joined as parties pursuant to rule 32 hinges on whether or not on the evidence • adduced before the court below, they had shown sufficient interest or locus standi to entitle them to be joined as parties to those proceedings ... " She further referred to Konkola Copper Mines v. Nyambe Martin Nyambe & 64 Others 131 where the Court guided that a party qualified to be a party to proceedings where such a party had such sufficient interest and locus standi in tbe matter. The court posited as follows: ·R6· "The three considerations that a court dealing with an application for joinder should consider apart from putting an end to any further litigation by avoiding multiplicity of actions and the interests of justice are whether the applicant has locus standi and sufficient interest in the matter and whether the applicant was aware if the proceedings. This is in line with the holdings in the cases of The Attorney General v. Aboubacar Tall • and Zambia Airways Corporation Limited, London Ngoma and Others v LCM Company and Another and Abel Mulenga and 7 Others v The Attorney GeneraL" It was submitted in I.his regard that the Defendant had never entered onto the Plaintifrs land or cut down trees, or vegetation and graded a road on the Plaintiffs land and therefore never caused any nuisance. Learned counsel further submitted that the Plaintiff brought this action against a wrong party who should not have been joined to the • proceedings. In her oral submissions, counsel reiterated her arguments and urged this Court to dismiss the action against the Defendant. I have carefully considered the affidavit evidence and the arguments in support of this application. -R7- By this application, I have been called upon to determine whether the Plaintiff's action against the Defendant is properly before this Court in light of the fact that the Defendant has no locus standi or sufficient interest in Lhe matter. The application is anchored on Ord.er 14A rule (1) and (2) of the Rules of the Supreme Court of England which provides that: • "(1) The Court may upon the application ofa 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 a 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 . (2) Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just." Order 14A above empowers the Court to determine any question of law or construction ansing in any matter at any stage of the proceedings where it appears to the Court that such question is suiLable for -R8- determination without a full trial of the action, and where such determination will finally determine the entire cause or matter or any claim or issue therein. My understanding of Order 14A of the Rules of the Supreme Court, therefore is that it can only be invoked when the application has the potential of bringing the entire matter to finality. • The two conditions that must be satisfied before determining any question of law are that the question must be suitable for determination without the need for a full tr:al and secondly, that the determination must be one that would finally determine the entire cause or matter or any claim or issue in the matter. Similar sentiments were expressed by Sitali J, in Habib Industries Limited v. Amish Industrial Products Limited and Another (41 when • addressing the effect of Order 14A of the Rules of the Supreme Court. She stated that: "On the other hand, Order 14A of the RSC edition empowers the court to determine any question of law of construction of any document arising without full trial of the action whether it appears to the court that such a determination will finally determine the proceedings or an issue in the proceedings." -R9- It can thus be stated that it is not every question of law or construction that can be determined without a full trial of the action. Fc•r instance, on a question of whether or not there was discrimination against the petitioner, the Supreme Court stated in the case of Attorney General v. Law Association of Zambial5l that: "We accept that on the facts on record and the nature of • reliefs sought, the issue of discrimination could not have been dealt with as a preliminary issue. The trial Judge was, therefore, on firm ground when he held that whether there was discrimination or not against the Petitioner was an issue to be determined during the hearing of the main action." In the case in casu, the Defendant argues that he never entered onto the Plaintiff's land or cut down trees, or vegetation and graded a road on the Plaintiffs land and therefore never caused any nuisance. It is • thus contended that the Plaintiff brought this action against a wrong party who should not have been joined to the proceedings. That this is an issue that could be detern ined without full trial as envisaged in Order 14A Rule l(l)(a) of the Rules of the Supreme Court. I have carefully analyzed the Defendant's contention in light of the reliefs sought by the Pia.in tiff as endorsed in the statement of claim. The ·RlO· Plaintiff in the statement of claim in essence claims for damages for trespass to land and nuisance. It is therefore clear that the preliminary issue raised is intrinsically lfokcd to the main C:Uestion for determination at trial. My considered view is that the question raise:i is not suitable for determination without the need for a full trial. I say :his because the determination of whether • or not the Defendant trespassed or caused nuisance on the Plaintiffs land is one that requires that evidence be adduced. ln line with this, the Supreme Court in the case of Carm Investment Limited v. Circolo Italiano Di Lusaka161 expressed misgivings at parties frequently raising preliminary objections as there could be a danger of the court straying into the substantive issues. I therefore form the view that the determination of this issue at a • preliminary stage which is linked to the main question to be determined at trial poses a dange:- of straying into or pre-empting the issues U1at are to be determined at the hearing of the main action. In saying this, I am also ably g.1ided by what the Supreme Court stated in Concrete Pipes and Products Limited v. Kabimba and Others 111 that: ·Rll· "In many cases that have come before this court and where preliminary issues have been raised, we have deferred our ruling on such preliminary issues until after the main action was heard. .. . . . in the present case, the preliminary issue was raised by the Appellant at the commencement of the hearing. Although the court indicated in the passage that we have quoted from its ruling that the preliminary issue was • dismissed, the context of that ruling is that the appellant was advised to make that preliminary issue part of its defense." It would appear that in cases where the preliminary issue raised is not capable of fully determining the questions without a trial of the action, it is prudent for the court to defer the ruling until after the hearing of the main action. In view of the foregoing, cons:::lering the fact that the preliminary issue • raised by the Defendant is integrally linked to the core of this cause matter and is the basis upon which the reliefs endorsed in the statement of claim are sought, the Defendant is at liberty to make the issue raised as pa.rt of his Defence. For the reasons that I ha·;e highlighted above, I find that the Defendant's application to raise a preliminary issue al this stage of the -R12- proceedings has no merit ar:d it is accordingly dismissed it. I make no orders as to costs. DELIVERED AT LUSAKA THIS 30TH DAY OF JANUARY, 2024 • JUDGE • \ • -R13-