Cletus Mukupa and Anor v Justin Mwaka Mutemwa (2021/HP/1321) [2022] ZMHC 100 (30 March 2022)

Rl IN THE HIGH COURT FOR Z,~DJ1 AT THE PRINCIPAL RE HOLDEN AT LUSAKA (Civil Jurisdiction) · 1 1 0 ' OS PRINCIP.tL - . - - - - - ,_ . -.. ...- -. - - 2021/HP/1321 l.q ] REGISTRY X 50067 , UJSF'< 'f-.'i>-- . BETWEEN: CLETUS MUKUPA MOSES FUNGA (Suin g as an attorney for Jan e Kapita Ch is h imba) AND 1st PLAINTIFF 2 nd PLAINTIFF JUSTIN MW AKA MUTE MW A DEFENDANT Before Honourable Mrs. Justice M. Mapani-Kawimbe in Chambers on the 30th day of March 2022 For the Plaintiff: Mr. L. Mumba, Messrs Ferd Jere & Company For the Defendant: Ms. M. Sianzu.mo, M essrs Malambo & Company RULING Legislation referred to: 1. High Court Act, Chapter 2 7 Case referred to: 1. Jackson v B ritish Medical Association (1970) 1 ALL ER 1094 Other works referred to: 1. Atkins Court Forms, Volume 30, 2 nd Edition 1979 Issue 2. Halsbury's Laws of England, Volume 2(1), 4 th Edition, 2003 Re-issue R2 Introduction 1) On 24 t h February 2022, the defendant filed into court summons for an order to strike out the 2 n d plaintiff and his pleadings, pursuant to Order XIV Rule 5(2) of the High Court Rules and Order 18/19/26 and Order 18/18/38 of the Rules of the Supreme Court, 1965 Edition. The application was supported by an application of even date and skeleton arguments. Defendant's case 2) The defendant deponed that the 2 n d plaintiff who had no capacity to institute legal proceedings in his names, ought to be struck off as a party in this suit. In consequence, the pleadings that ref erred to him in paragraphs 2, 4, 10, 11 and 12 of the statement of claim were to suffer similar fate. In concluding, the deponent urged the court to grant him the relief that was placed before it. Skeleton arguments 3) On behalf of the defendant, learned counsel Ms. N. Sianzumo argued that the court had power to strike out a R3 party from proceedings under Order XIV Rule 5(2) of the High Court Rules as follows: The court or a Judge may, at any stage of the proceedings, and on such terms as appear to the court or a Judge to be just, order that the name or names of any parties whether as plaintiffs or defendants, improperly joined, be struck out. 4) She then adverted to Order 18/ 19/ 16 of the Rules of the Supreme Court (1965) edition setting out the power of t h e court to, inter alia, strike out pleadings 1n listed circumstances, such as under Order 18/ 18/38 of the Rules in the following manner: But if the defendant desires to question the authority of the authority to sue the plaintiff's name, he must apply to strike out the plaintiff's name at an early stage; he cannot by his defence dispute the authority, nor can he do so at trial. 5) Counsel then a rgued that the 2 nd p laintiff who h a d been donated a power of attorney by Ms . Jane Ka pita Chis himba h ad no locus standi. Sh e fortified h er asser tion by calling in aid the learned a uthors of Atkins' Court Forms 2 nd Edition, who at p age 35 s tate on a donee granted power of attorney, that: A person suing under a power of attorney on behalf of his principal sues in the name of the principal only; the title of the action should not indicate the existence of the power of attorney. R4 6) Sh e fu r ther cited Atkins' Court Forms (supra) at page 79, paragraph 13, t hus: A solicitor who acts on behalf of a litigant without proper authority incurs personal liability in costs, but is for the parties, not the court to raise any question of want of authority. In the simple case where a power of attorney is given to someone to bring or defend an action in the name of and on behalf of the donor, the proceedings should be in the name of the principal and the title of the proceedings will not indicate that another person has bee n empowered to act on his behalf: the action proceeds as if the principal had not delegated to an attorney the taking or defending of the proceedings. 7) Counsel furth er reinforced h er su bmission by referrin g t h e court to the learned authors of Halsbu ry's Laws of England Volume 2(1) wh o affirm the prin ciple on the position of a donee in legal proceed ings. On that basis, coun sel asserted that the donee in casu had n o cap acity to institute legal proceedings in his own n ames . As resu lt, h is action was render ed incompetent. She con cluded with a pr ayer to court to strike out the 2 nd p lain tiff and his p lead ings from the suit, with costs to the defendant. I am grateful to counsel for h er su b missions. Plaintiff's case 8 ) In response, the 2 n d plaintiff file d an opposing affidavit and skeleton arguments dated 17 t h March 2022 . He averred that RS he was validly donated power of attorney (exhibit MFl-5 in his supporting affidavit) by Ms. Jane Kapita Chishimba, who resides in London, England. S h e empowered him to represent h er in this suit and th erefore had locu s standi. The 2 n d p laintiff averred that the defendant's challenge against him was merely on the form in which, he appeared and not substance. Hence, there was no reason for the court to strike him or his pleadings out of the suit as the defect was curable. He con cluded by urging the court to dismiss the defendant's application with costs. Skeleton arguments 3) Learned counsel Mr. L. Mumba argued on behalf of the 2 nd p laintiff t h at he had valid power of attorn ey, which authorised him to institute legal proceedings on behalf of Ms. Jane Kapita Chishimba. In particular, the clause in which he was donated power read as follows : My a ttorney to sue in the courts of Zambia or by litigation or otherwise to ensure my property situated i n 10 miles area in Chibombo district is completed by the contractor whom I have paid in full and he has refused and/ or neglected to complete the to said construction and my attorney has powe r specifically enforce the said contract of construction. R6 4) Coun sel argued that since t h e 2 nd plaintiff h ad the requisite authority to carry out transactions on behalf of h is donor; striking him out from the proceedings would b e a very aggr essive way of dealing with a simple technicality . He fortified h is assertion with the case of Jackson v British Medical Association 1 , where that court held that: The summary power to strike out a pleading failure to disclose a reasonable cause of action was one which should be executed only to plain and obvious cases .. 5) Counsel submitted that s in ce th e power of attorney empowered t h e 2 nd p laintiff to act on behalf of Ms. Chishimba, he could not abandon his responsibility. In concluding, h e prayed to court to exercise its discr etion unde r Order 3 Rule 2 of the High Court Rules for the 2 nd plaintiff to cure the defect in appearance and offending portions of the pleadings. I am grate ful to counsel for his submissions. Hearing 6) I h eld the h earing of the application on 22nd March 2022. Learn ed counsel for the parties told the court that they would re ly on their respective affidavits and skeleton R7 argumen ts. They briefly reiterated th eir positions and concluded with th eir r espective prayer s. Analysis and decision 7) I have carefully considered the application, th e rival evidence, skeleton arguments and the authorities cited therein. I have equally considered the power of attorney granted to the 2 nd p la intiff. The question before me is whether the 2 nd plaintiff as a donee has capacity to institute legal proceedings in his own name? 8) As far as this court sees it, the manner in which, a donee may approach court on behalf of a principal has been aptly stated in a number of authorities cited by the learned counsel for the plaintiff. The learned authors of Halsbury's Laws of England Volume 2(1) at page 56, paragraph 72, state on the capacity of a donee in legal proceedings that: An agent acting under a power of attorney should, as a If he is general rule , act in the name of the principal. authorised to sue on the principal's behalf, the claim should be brought in the principal's name . 9) From the above, it is clear to me that by filing the suit in his own name, Moses Funga exceeded the authority ceded to him in that power of attorney. More so t h at the power of RS attorney is replete with clauses restricting his powers as a donee . In clause 1, it says the donee is to act "in the name of, and on behalf of the donor." In clause 2 that the donor shall ratify and confirm all the actions that the donee shall perform. 10) It is not lost to the court that Mr. Mumba c ounsel for the 2 nd plaintiff, contended that the defendant's grievance only affected the form in which, the 2 nd plaintiff appeared and not the substance of the case . He further argued that the defect could be cured as opposed to striking out that plaintiff. In my view, however, the point raised by the d efendant is not a procedural technicality but a point of substantive law. 11) The right party that should have sue d as the 2 n d plaintiff is Ms. Jane Kapita Chishimba. Therefore, the objection being substantive and touching the root of the case shows t h at there is no contractual nexus between t h e 2nd plaintiff and the defendant. This being the case, Moses Funga should not h ave filed the suit in his name but that of the donor as envisaged under the power of attorney. R9 Conclusion and disposition 12) I t herefore make the following orders: - i) The d efendant 's a pplication against Moses Funga 1s upheld. ii) In accordance with the tenants of justice, and the inherent discretionary power of this court, I allow the 2 nd plaintiff to bring a fresh suit on the same facts, which must be filed into court by 6 th April 2022 without failure. iii) The defendant shall file its defence by 13th April 2022 without failure. iv) The 2 nd plaintiff s hall file a reply by 19th April 2022 without failure . v) The m atter sh all com e up on 21 st April 2022 at 08.30 hours for th e issuance of a further order for directions. 13) Costs of the aplication s hall b e for the defendant t o be taxed in default of agreement. Dated at Lusaka this 30th day of March 2022 M. Mapani-Kawimbe HIGH COURT JUDGE