Faramco Limited and Ors v Kavanda Investments Limited (APPEAL NO. 50/2006) [2007] ZMSC 194 (17 August 2007)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 50/2006 (Civil jurisdiction) BETWEEN: FARAMCO LIMITED THE ATTORNEY-GENERAL COMMISSIONER OF LANDS JIMMY SINKALA CAMEL FREIGHT LIMITED AND 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT 5TH APPELLANT KA VANDA INVESTMENTS LIMITED RESPONDENT Coram: CHIBESAKUNDA, SILOMBA, JJS and KABALATA, AG/JS On 5th September 2006 and 1 i b August 2007 For the 1st Appellant: For the 2nd & 3rd Appellants: For the 4th ' & 5th Appellants: For the Respondent: Mr. R . Mainza of Messrs. Mainza and Company. Mr. M. M . Lukwasa, Principal State advocate. Mr. Eric Silwamba SC. of Messrs Eric Silwamba and Company. Mr. W. Mubanga of Permanent Chambers. JUD6MENT Chibesakunda, JS, delivered the Judgment of the Court Cases referred to: 1. New Flast Industries V The Commissioner of Lands and the Attorney-General SCZ No. 8 of 2001 2. Zambia Seed Company Limited and Chartered International (Pvt) Limited SCZ No. 20/99. J2 3. Joseph Gereta Chikuta V Chipata Rural Council [1974] ZR 4. Appolo Refrigeration Services Company Limited V Farmers House Limited [1985] ZR 182. 5. Frederick Jacob Titus Chiluba V The Attorney-General Appeal No. 125/2002. 6. 7, Kahlid Mohammed vs. the Attorney General 1982 ZLR P. 49. London Ngorna & Others vs. LCM Company Limited and UBZ (in liquidation) (SCZ) 1997. 8. Attorney General V Aboubacar Tall and Zambia Airways Corporation Limited, scz No.5 of 1995. Legislation referred to: 9 . The Lands and Deeds Registry Act Cap 185 Sections 87 and 10. Section 10 of the High Court Act Cap 27 11. Section 12 of the Subordinate Court Act Cap 28. 12. Halsbury's Laws, Vol. 37, 4~ Edition P.287 para 131 0138 13. Atkins Court Forms V. 12 Para 9 Pages 131 - 138 ...... of RSC 14. Order 53 of RSC 1999 Edition. 15. Section 13 of the Lands Act Cap 184. 16. State Proceedings Cap 21 This is an appeal against a Judgment of the High Court in an application for Judicial Review under Order 53 of the RSC (14). In that application the Respondent sought the following reliefs:- 1. An Order of Certiorari to remove into High Court for the purpose of its being quashed the purported Consent Order as well as the purported Order of eviction and possession made by the Subordinate Court of the 1st Class under Cause No. 200/SSP/432 dated 25th August 2003 and 26th August 2003 respectively purporting to grant Stand No. 21633 to the 1st Appellant by the 3rd Appellant and also evicting the Respondent from Stand J3 No.14695 Lusaka and granting possession thereof to the Respondent. 2. An Order of Mandamus to compel the 4th Appellant to execute all necessary and consequential deeds and documents to transfer or assign Stand No. 14695 Lusaka to the Respondent. 3. Further or in the alternative a declaration that the purported Consent Order herein is null and void and of no legal effect as it is ultravires, unfair, unreasonable and contrary to the rules of natural justice. 4. An Order of certiorari to remove lnto the High Court for the purpose of it being quashed the decision taken by the rd Appellant (Commissioner of Lands) on the 2ih August 2003 purporting to cancel the property known as Stand No. 14695 Lusaka as well as purporting to re-number the said property as Stand No. 21633 Lusaka unilaterally and without affording the Respondent an opportunity to be heard in respect thereof. 5. A declaration that the 3rd Respondent's purported cancellation and re-numbering of the said property is null and void and of no legal consequence as it is ultravires, unfair, unreasonable and in breach of the rules of natural justice. 6. An Order of Mandamus to compel the 3rd Appellant to reinstate and restore the property at and known as Stand No. 14695 Lusaka and reverse the purported re- J4 numbering of the said property as Stand No. 21633 Lusaka. The facts not in dispute in brief are that, Stand No. 14695 Lusaka was originally allocated to one Badat Ahmed Ibrahim from 1st June 1993 for a period of 99 years on certificate of title No. L2872. On 30th May 1995 the said Badat Ahmed Ibrahim executed a deed of transfer in favour of Lambat Ibrahim Hussain and Lambat Aisha Ibrahim and on registration of the deed certificate of Titled No. L2925 was issued on 30th May, 1996. On the 19th of February 2002 the Commissioner of Lands issued notice of intention to re-enter Stand No. 14695 Lusaka as a result of non-development. The said re-entry was effected on the 26th of February, 2003. Subsequently, this Stand was allocated to the 4th Appellant who obtained certificate of title No. 17740 on the 11th of April, 2003. According to the first appellant, it was discovered that this notice of re-numbering and the certificate of re-entry were not served on Lambat Ibrahim Hussen and Lambat Aisha Ibrihim contrary to Section 13 of the Lands Act (15). In an agreement In writing dated 1 ih May, 2003, read together with an addendum dated 25th June, 2003, the 4th Appellant sold the JS said property to the Respondent for a sum of KS6,000,000.00. the 4th Appellant and the Respondent signed the Law Association of Zambia Contract of Sale, and pursuant to a further addendum, dated 18th August 2003, the Respondent was granted vacant possession of the said property by the 4th Appellant as a way of security from trespassers and not by way of completion. Messrs Central Chambers who had been retained as advocates for both vendor and purchaser respectively, in respect of this transaction, received full purchase price paid in the amount of KSS,000,000.00 and in addition received a sum of Kl,000,000.00 making a total of K56,000,000.00 as full purchase price for the property in question. Messrs Central Chambers in their cover letter to the Registrar of Lands, appearing at page 49 of the record, surrendered the said certificate of title in respect of Stand No. 14695 Lusaka in order to facilitate rectification following the reduction by 20 meters in order to pave way for construction of the road by the relevant authorities. Meanwhile, as these transactions were going on the 3rd Appellant, unknown to the Respondent, renumbered Stand No. 14695 as Stand J6 No. 21633 Lusaka. This renumbered Stand No. 21633 was allocated to the 1st Appellant. According to evidence on record the 1st Appellant in or about May 2000 commenced proceedings in cause No.2000/SSP/432 against Sterling Motors in the Subordinate Court claiming for possession of Stand No. 20996/2 Lusaka, which the said Sterling Motors was occupying without the consent of the 1st Appellant. Subsequently, these proceedings were amended by addition of the 2nd , 3rd and 4th Appellants as parties to the proceedings. The parties to this action were FRAMACO Limited (now the 1st Appellant) vs. Sterling Motors as 1st Defendant, the Attorney General as 2nd Defendant (now the 2nd Appellant) and Commissioner of Lands as 3rd Defendant (now the 3rd Appellant). As can be seen the Respondent was not a party to the action. According to the Respondent, it was not even aware of these proceedings. All these parties to this action agreed to settle this matter by consent order. All these parties except the Attorney General signed this Consent judgment, which says: "UPON CONSENT of the pa,ties herein it is adjudged that the 1st Defendant ( Starling Motors} is the absolute owner of Stand No. 20996 situated in the Lusaka Province of the Republic of Zambia and IT IS FURTHER J7 ORDERED that the Plaintiff {FRAMCO Ltd) will be given by the 3"" Defendant stand No. 21.633 situated in the Lusaka Province of the Republic of Zambia as a full and final settlement of the matter,," As per record, the Respondent further discovered that the Consent judgment was executed later by Order of Eviction and Possession dated 26th August 2003 by the Magistrate Court and by subsequent directives by the 3rd Appellant to renumber Stand No. 14695 to be now Stand No. 21633. This prompted the Respondent to come to court to seek leave to challenge these orders by way of Judicial Review. The Respondent's position's at the High Court was that, they came to Court for Judicial Review because of the nature of the reliefs they were seeking from the court. They submitted that their advocates Central Chambers and the advocates of the 4th Appellant Messrs Lloyd Siame and Company had entered in correspondence with the 3rd Appellant and Department of Physical Planning and Housing in the Ministry of Local Government and Housing trying to resolve this matter out of court. According to the record at the Lusaka City J8 Council and the Department of Physical Planning Plot No. 14695 had never been renumbered and that it remained in the same physical position as indicated in the Certificate of Title. Their position is that on failure to settle this matter out of court as the 3rd Appellant refused to accept this position, they had to come to court this time seeking Judicial Review under Order 53 RSg:t4) to quash the consent judgment in cause No.2000/SSP/432 and the decision of the 3rd Appellant to cancel and re-number stand number 14695 to 21633 Lusaka. Before hearing the application for Judicial Review, the 1st, 2nd , 3rd , 4thand 5th Appellants put in a notice to raise a preliminary point on the mode of commencing this action by the Respondent. The gist of this preliminary point was that since Section 87 of the Lands and Deeds Act (9) has laid down the practice and procedure in commencing any dispute relating to land in Zambia, the commencement by way of Judicial Review by the Respondent was improper, as that did not comply with the procedure stipulated in these Sections. It was argued that this court dealt with these issues in the New Plast (1) case where the court set very clear guidelines J9 on the mode of commencing any action before the Zambian courts. The court pronounced that relevant statutes prescribed the different modes of commencement of actions in the Zambian courts and that in as far as any dispute relating to land was concerned, Sections 87 and 89 of the Lands and Deeds Registry Act (9) provided proper procedure. It was also argued by the Appellants that the application for Judicial Review under Order 53 RSC (14) was wrong mode of commencement. They argued that because of these provisions in Section 87 and 89 (9) the Zambian law did not have any lacuna for invoking Section 10 of the High Court Act (10}. The Respondent's position was that because of the nature of the reliefs sought namely, the quashing of the Subordinate Court Orders and the quashing of the Commissioner of Lands' directives of canceling and re-numbering of Stand No. 21633, the proper mode of commencing the action was for the Respondent to seek the directory orders from the High Court. So they argued that the Judicial Review as provided in Order 53 of RSC 1999 {14) was the only proper mode of commencing this fresh action. The Learned trial Judge ruled on this preliminary point that, guided by the Zambian authorities, Halsbury's Laws, (12) and Atkins Court Form~.,.13) the Respondent correctly chose to commence this action to set aside the Consent judgment and quashing the directives by the Commissioner of Lands by way of Judicial Review under Order 53(14). This was because, according to the Learned trial Judge, there was a lacuna in the Laws of Zambia covering this particular area of the law. He further ruled that, what was important was the fact that the Respondent was commencing a fresh action to quash the Consent Order and directives by the Commissioner of Lands. Accordingly, the application for judicial Review was correctly before the court. On the main application for Judicial Review before the High Court the Respondent's position, citing Order 53 RSC(14), was that: (1) Since the purported Consent order was ultravires as it was clearly contrary to Section 54(2) (b) of the Constitution of Zambia, read together with the State Proceedings Act Cap 71 (16), of the Laws of Zambia (17) in that the Attorney General did not Jll sign it, it was therefore impeachable by way of Judicial Review. (2) Since the Consent order was ultravires as it was contrary to Section 20 (1) (4) of the Subordinate Court as amended by Act No. 25 of 1998 in relation to Stand No. 21633 (14695) which was subject of the Consent order in that the property was worth more than K30, 000.000.00, this maximum amount for any action to fall under the jurisdiction of the Subordinate Court, therefore the Consent order was impeachable. (3) Since the Consent order was unfair and unreasonable and contrary to the rules of natural justice and that the grant of the said Stand by the 3rd Appellant to the 1st Appellant was done at the time that the Respondent had secured title but were never allowed to be heard, thus making the Consent order impeachable. ( 4) Since the purported Consent Order was unfair, unreasonable null and void in that the 1st Jl2 Appellant's claim under Cause No. 2000/SSP/ 432 was in respect of Stand No. 20996/2 Kafue Road Lusaka whereas the purported Consent judgment was made in respect of Stand No. 21633 Lusaka which was not the subject matter of the said proceedings, and the order of eviction and possession made pursuant to the purported Consent Order was in respect of Stand No. 21633/14695 Lusaka which is a different property altogether from Stand No. 20996/2 Kafue Road pleaded in the 1st Respondent Amended Writ of Summons aforesaid, these proceedings were impeachable. Therefore the Respondent argued that the only way to impeach the consent order was either by the consent of all the parties if such impeachment was not going to be prejudicial to a 3rd party or by commencing a fresh action to set aside the consent judgment which it was doing by seeking Judicial Review. The Respondent argued that there were two decisions which they were asking the High Court to impeach, firstly, the consent judgment and secondly, the directives by the Commissioner of lands to cancel and renumber Stand No. 14625 to 21633. The Respondent contended that there was common ground on the point that they had to commence a fresh action to impeach the consent order and set aside the consent judgment. The Respondent argued further that it had an option of either (1) obtaining consent of all parties to the action or (2) commencing a fresh action for that purpose and since Sections 87 - 89 of the lands and Deeds Act (9) did not apply to this case before this court as these Sections only dealt with the Appeals lying from the Registrar's decisions and not from the Commissioner of Lands' decisions, its choice was the second option. This was so because the first option of getting the consent of all parties to this action to set it aside was not tenable as it was not a party to this action. The Respondent's view was that looking at the provisions of Sections 87 and 89 of the Lands and Deeds Registry Act, there was a lacuna in our laws. According to the Respondent this is why it had to invoke Section 10 of the High Coult Act {10). It further more explained that it had to resort to J14 apply for leave to apply for Judicial Review under Order 53 of RSC (14) because of the nature of the reliefs it was seeking. The sum total of the Appellants' argument in response was that, the Respondent had invoked a wrong mode of commencing the action to challenge the consent order. They amplified this argument by submitting that the guidelines relating to Judicial Review process were amply set out in Fredrick Jacob Titus Chiluba v. the Attorney General's case (5). The gist of these guidelines is that the court's role in Judicial Review process was limited. They argued that the court in Judicial Review is concerned not with the merits of the decision made by the inferior body but whether or not the due process before reaching the decision was observed. They argued that the Respondent had failed to establish the basis for seeking Judicial Review. In addition, they argued that the 4th Appellant had, contrary to Section 13 of the Lands Act(9) sold land without state consent of the Respondent. According to them the core argument by the Respondent was on the ownership of the land in question. Their submission is that since the Respondent sought to challenge the re entry and re-allocation of the land to the 1st Appellant, it should have brought this action under Section 87 and 89 of the Lands and Deeds Act (9). On the argument that the Subordinate Court did not have jurisdiction, they argued there was no evidence that the property in question was valued more than K30,000,000.00 to exclude the Subordinate Court's jurisdiction. They referred to Section 23 of the Subordinate Court Act, which provides that if the parties' interested consent, the Subordinate Court has jurisdiction in any matters relating to land disputes or ownership of land. Therefore they argued that the consent order executed by the Subordinate Court was in conformity to this Section. They referred to Section 12 of the Subordinate Court Act, which is the replica of Section 10 of the High Court Act (10) and argued that the Respondent was in breach of this Section as it sought to resort to English Practice and Procedure when there was no lacuna in our laws. On the argument that the Attorney General did not sign the Consent judgment, they argued that according to Section 13 of State Proceeding Act (16), the Attorney General had the power to appoint a practitioner to have conduct of any matter in which the Attorney General is a party. They argued therefore that, the Jl6 signature of the Commissioner of Lands represented the Attorney General's signature. The Learned trial Judge in his judgment in favour of the Respondent ruled that, the remedy of quashing the Consent Order and the directives by the 3rd Appellant, was discretionary. He went on to hold that he was satisfied that since the Respondent was not heard in the Subordinate Court and before the 3rd Appellant renumbered the property in question and allocated it to other people, the Respondent was entitled to the remedies sought of certiorari. He also awarded damages to be assessed by the Learned Deputy Registrar and costs to the Respondent. The Appellants, aggrieved by this judgment of the Learned trial Judge, have appealed to this court. Before us the Appellants only argued two grounds of appeal, which are interrelated. These are: (1) That the Learned Judge misdirected himself in granting the order of certiorari to the Respondent and thereby quashing the Consent Order when the Respondent had other avenues of challenging the consent order. (2) That the Learned Judge misdirected himself in granting the order of certiorari as this amounted to multiplicity of actions and abuse of process by the Respondent. All the four Counsel for the Appellants relied on their written heads of argument. In addition, the three Counsel; Mr. Eric Silwamba, SC., Mr. M Lukwasa, Principal State Advocate and Mr. Mainza made oral submissions supporting the written arguments. Mr. Bwalya who was not in attendance, through Mr. Silwamba SC., submitted that he also relied on his written heads of arguments in which he concurred with his colleagues on the arguments before the court. On ground one, their main attack was on the mode of commencing this action to impeach the Consent judgment and the directives by the Commissioner of Lands to cancel and renumber J18 Stand No.14695 to No. 21633. They all argued that it was a wrong mode of commencement. Mr. Silwamba, SC., leading the argument in support of this ground of appeal, pointed out to us a number of authorities in which we have made authoritative pronouncements on the proper mode of commencing any action before the courts in Zambia. He argued that since the issue before this court was essentially dealing with the cancellation and the re-numbering of the certificate of title, it was a dispute essentially on ownership of land. These issues were well covered by Sections 87 and 89 of the Lands and Deeds ReqistryAct:(6). Citing the case of New Plast Industries Limited (1), which he pointed out, was on all fours with this case before us, he argued that generally the mode of commencing of an action is provided for in the relevant statute and litigants are guided as to how to commence proceedings. He quoted the case of . Joseph Gereta Chikuta v Chipata Rural Council (3), and argued that this court pronounced itself very clearly on the mode of commencing any action before the Zambian courts. This line of sound reasoning was subsequently followed in the recent case of New Plast Industries Limited (1). So Mr. Silwamba, SC., urged this court to adopt this reasoning and uphold the appeal. Mr. Silwamba, SC., in addition argued that the lower court departed from the pleadings. According to him the lower court went off tangent. He further submitted that on this ground also this court should uphold the appeal. He further argued that, that since the confusion was about who really owned stand No. 14695 now Stand No. 21633, the lower court erred in proceedings on affidavit evidence to try and resolve questions of ownership of land. Again he urged this court to uphold the appeal. Mr. Lukwasa supporting. Mr. Silwamba's argument in his written and oral submissions, argued that the lower court grossly erred when it proposed to remove the proceedings of the Subordinate Court to the High Court and to quash thereafter the orders by way of certiorari and mandamus. He argued that the Consent order, that was being challenged, was executed by the Subordinate Court, a court of record established pursuant to the jurisdiction vested in it in the Constitution of the Republic of Zambia. It was therefore argued that the only way to challenge such a Judgment, rendered by the Subordinate Court was to appeal to the High Court as provided under Section 28 of the Subordinate J20 Court Act (11). He argued that since the Subordinate courts was a court of record any grievances against any Judgment could only be presented in form of an appeal as provided in Section 28 of the same Act. He further argued that where the question of title was concerned, Section23 of the Subordinate Court Act provided that "if the parties to that action, consent to the Subordinate Court hearing the matter, the Subordinate Court may then deal with such case but where the parties don't consent, the presiding Magistrate ought to apply to High Court to transfer such matters to itself'. The other argument by Mr. Lukwasa was that the Appellants knew that they ought to have applied to join as a party to the proceedings before the Subordinate Court. He referred to the case of London Naoma and Others vs. UBZ (in liquidation} (7) and argued that the current position at law is that the party with interest in any matter before any court, cannot be barred from joining any proceedings once that party demonstrates sufficient or any amount of interests in the proceedings if that party follows proper procedure. Mr. Lukwasa argued that even if the consent judgment was being J21 executed, the Respondent had a right to apply to be joined as party. Mr. Lukwasa argued further that by commencing the action for Judicial Review, the Respondents disregarded the existing law and as such were in breach of Section 10 of the High Court Act /10) and Section14 of the Subordinate Court's Act(11). He argued canvassed the view that the Zambia law was adequate to cover the issues in contention before us and that the English White Book could only be resorted to if our laws were silent or not fully comprehensive on this point. Mr. Mainza, Counsel for the 1st Appellant also echoing the other two Counsel's argument argued that the Learned trial Judge erred when he presided over a matter commenced in a manner not provided for under the Lands and Deeds Registry Act (9). He argued that it was erroneous for the High Court to remove the proceedings of the Subordinate Court to the High Court and to quash the same by issuing the order of certiorari and mandamus. The Subordinate Court, he argued, was governed by part three of the Subordinate Court Act. Section 12 of the Subordinate Court Act (11) sets out the jurisdiction of the Subordinate Court. Section 23 of J22 the same Act should have given the High court some guidance. He argued that the proceedings before the Subordinate court were not a nullity, as there was no evidence to support the Respondent's contention that the value of the property in question was in excess of K30,000,000.00. On Ground 2, all the four Learned Counsel questioned the basis of the Respondent seeking Judicial Review, taking into account the limited perimeters of Judicial Review proceedings as pronounced clearly in the Fredrick . Jacob Titus Chiluba and Attorney General (5) case where this court after visiting a number of authorities pronounced that the court's role in Judicial Review matters was not that of an Appeal Court. But that the court's role was to assess whether or not due process was followed by the inferior court before a decision was made. They amplified this argument by submitting that the Respondent failed to establish that the matters before court fell within the ambit of Judicial Review as provided for under Order 53 of the RSC (14). They argued that it was trite law that the burden of proof, even using lesser standard as required in civil matters, lay on the party who substantially asserted J23 the issue. Citing the case of Kah/id Mohammed vs. the Attorney-General (6) where the court said; " An unqualified proposition that the Plaintiffs should succeed whenever the defence has failed is unacceptable .... " they argued that the Respondent failed to adduce evidence to establish that the procedure was not followed and that the rules of natural justice were not adhered to. They submitted that the Learned trial Judge lamentably failed to make findings that the Subordinate Court acted outside its jurisdiction or make findings which demonstrated that he bore in mind these limitations of the process of Judicial Review. In addition they argued that there was multiplicity of action because the Respondents commenced a fresh action by Judicial Review, when the consent judgment was yet to be expunged. According to them this created multiplicity of action, which this court has condemned. In response, Mr. Mubanga explained that the lower court was on firm ground to have entertained the application for Judicial Review. In his brief summary of the history of this case he informed the court that on or about May 2003 the Respondent discovered that Stand No. 14695 had been renumbered as Stand No. 21633 by the 3rd Appellant. This renumbered stand No. 21633 was allocated to the 4th Appellant by virtue of the Consent judgment in the Subordinate Court, he then sold it to the Respondent. Mr. Mubanga submitted that according to the record from Lusaka City Council and the Department of Physical and Housing, Stand No. 14695, which was purportedly renumbered as Stand No. 21366 was never renumbered. It remained the same and in the same physical position as indicated in the certificate of title. With this information and since there was a consent judgment, the Respondent had to seek an order of certiorari to remove the matter from the inferior court to the High Court. He further argued that because of the nature of the reliefs sought and since the claim before court was centered on two issues namely: (1) the position of the 3rd Appellant and (2) the position of the Consent judgment sealed by the Subordinate Court, the Respondent was of the view that the Judicial Review process was the proper procedure. He went on to explain that the Respondent applied by way of Judicial Review for an order of certiorari to remove into High Court for the purpose of quashing the Consent judgment as well as the Order of eviction and possession issued by the Subordinate Court and the renumbering and canceling of Stand No. 14695 and ]25 replacing it with 21633 as directives of the Lands Commissioner. He argued that, this could only be done by a Judicial Review process as provided for in Order 53 of RSC (14). He argued that the High Court was on firm ground to rule that this was the only way the Respondent could have instituted new action in the lower court to challenge these two decisions. He elaborated on this argument by saying that Section 85 and 87 of the Lands and Registry Act (9) could have only been invoked to challenge the decisions of the Registrar but not those of the Commissioner of Lands. In this case before us he argued that the Orders in question were of the Commissioner of Lands and the Subordinate Court. He drew a distinction between this case and the case of New Plast Industries Limited (1). According to him the distinction was that in New Plast Industries Limited (1), the decisions being challenged were decisions by the Registrar not the Commissioner of Lands whereas the decisions being challenged in this case before this court are of the Commissioner of Lands. He argued that the term 'Registrar' was distinct and separate altogether from that of "Commissioner of Lands. He went on to submit that this question of the wrong procedure having been adopted by the Respondent was raised in the High Court J26 as a preliminary point and was fully argued before the lower court and adjudicated upon by the Learned trial Judge in his ruling of 1th December 2003. He argued that the Appellants never appealed against that ruling. He therefore argued that the Appellants cannot and should not be allowed to use this appeal against the Judgment of the Learned trial Judge of 3rd May 2004 as a chance to appeal against the ruling of 12th December 2003. He urged this court to dismiss this appeal. He argued that there was no danger of multiplicity of actions before the court. We have anxiously looked at the arguments and evidence adduced before the High Court. The sum total of the Appellants' argument is that the Respondent, contrary to Section 10 of the High Court Act (10) has come to court seeking Judicial Review under Order 53 of the RSC (14) when there is no lacuna in our laws. According to the Appellants, Sections 87 - 89 (9) have adequately provided the procedure and practice to be followed in all matters relating to land. Before dealing with these issues we take note of the fact that there are a number of facts on which there is common ground. These J27 are that they are two causes of action one, of which was commenced in the Subordinate Court which ended with a Consent judgment and the second cause of action is this application for Judicial Review to quash the Consent judgment executed in the Subordinate Court and the consequential order of eviction and possession and the directives of the Commissioner of Lands to cancel and renumber Stand No. 14695 which resulted from this Consent judgment. Coming to the contentious issues, it is settled law that, in any court in Zambia, if a party establishes sufficient or any kind of interest in a matter before any court, justice demands that, such a party be joined as a party in that matter. See the case of London Ngoma, and others and L. CM. Company and United bus Company fin Liquidation) (7). In the case of Attorney General Vs. Aboubacar Tall and Zambia Airways Corporation Limited (8) the application to be joined as a party came at the stage of the Supreme Court, when the court allowed the application to be joined as a party to the proceedings. We agree that this court has frowned on parties creating multiplicity of actions. However, in this case the Respondent could not have applied to be joined as a party to the J28 proceedings after establishing its interests in the property in question because a consent judgment had been concluded, which could only be impeached by either the stet consent of all parties to it provided such impeachment does not prejudice the 3rd party or by a fresh action commenced for that purpose, see Halsbury Law of England Vol. 37 ¢" Edition (12) and Atkins Court Forms {13) and Zambia Seed Company Limited Vs. and Chartered International Limited /Pvt) (2). So Mr. Mubanga was correct in his argument that the Respondents had to commence fresh action for the purposes of setting aside this Consent judgment. Coming to the main contention on the mode of commencing this fresh action to impeach the Consent judgment, we agree that this was an issue raised as a preliminary point by the Appellants and the Learned trial Judge made ruling agreeing with the Respondent on 12th December 2003. We also note that there was no appeal against this ruling by the Appellants. We however, hold the view that although this was a preliminary point raised by the Appellants and that there was no appeal against the Ruling of the Learned trial Judge, this issue did resurface as the central Issue before the High Court in the main application. Therefore, although there was no appeal against the ruling, since it resurfaced in the main argument, we are satisfied that in the interest of justice, even at this stage it has to be re-scrutinized. The Respondent, in its argument before this court, has advanced the argument that it had to commence fresh proceedings to impeach the Consent judgment and the decision of the Commissioner of lands by way of Judicial Review because of the nature of the reliefs they sought. In the case of New Plast Industries (1) this court explained that the nature of the reliefs sought has no bearing on the mode of commencing an action in the Zambian courts. This court said: "In our view, it is not entirely correct that the mode of commencement of any action largely depends on the relief sought The correct position is that the relevant statute generally provides the mode of commencement of any action. Thus, where a statute provides for the procedure of commencing an action a party has no option but to abide by that procedure. Section 10 of the High Court Act; Cap 27 is couched in very clear terms on the issue of practice and procedure. In this case the court set clear guidelines to the bar generally on how to commence actions before the Zambian Courts. We explained that Section 10 has prescribed a mode of commencing of any action before our courts. Section 10 says " The Jurisdiction vested in the court shall, as regards practice and procedure, be exercised in the manner provided by this Act and the Criminal Procedure Code, or any other written law, or by such rules order or directions of the Court as may be made under this Act; or the said Code, or such written law and in default thereof in substantial conformity with the law and practice for the time being observed in England in the High Court of Justice" In our view this provision is couched in very clear terms. It provides that the procedure and practice before the Zambian courts is mostly determined by the relevant provisions in the law. These relevant Acts are, the High Court Act, the CPC or any other written laws or by such rules and orders or directions of the Court. If there is a lacuna in our laws the party concerned can then commence an J31 action in substantial conformity with the law for the time being observed in the England in the High Court of Justice. It should be noted that Sections 8 of the Supreme Court of Zambia Act and 10 of the High Court Act are applicable to the High Court and the Supreme Court proceedings. In as far as the Subordinate Court Is concerned Section 12 of the Subordinate Act (1) replicates Section 10 of the High Coult.(10). Now the question is whether or not there is any lacuna in our law as argued by the Respondent in this matter to necessltate the invocation of English practice and procedure. It was argued by the Appellants that this question was adequately addressed in the same case of New Plast Industrietl). We have considered this argument raised by all the Counsel. We hold the view that this court in New Plast Industries Limited (1) only dealt with disputes falling under the Lands and Deeds Registry Act Cap 185 (9). Section 87 of the Lands and Deeds Act (9) says: "If the Registrar refuses to perform any act or duty which he is required or empowered by this Act to J32 perform, or if a Registered Proprietor or other interested person is dissatisfied with the direction or decision of the Registrar in respect of any application, claim, matter or thing under this Act; the person deeming himself aggrieved may appeal to the court0 and Section 89 says: "In the conduct of appeals from the Registrar to the court, the same rules shall apply as are in f'orce or exist f'or the time being in respect of ordinary appeals to the court from a subordinate court." These sections provide practice and procedure to be followed by any party aggrieved by decisions of the Registrar in all disputes falling within the ambit of cap 185. In the New Plast(l) case, this court held that "there is, therefore, no default in practice and procedure in matters falling under the Lands and Deeds Registry Act. 0 We therefore agree with Mr. Mubanga that the New Plast (1) case is distinguishable from the case before us, as in this case before us the decisions were not by the Registrar of Lands and Deeds. The ratio In the New Plast (1) case is not applicable to this case before us. In the Joseph Gereta Chikuta V. Chipata Rural Council (3), this court held that " The practice and procedure in the High Court is laid down in the High Court Rules, and J33 where they are silent or not fully comprehensive by the English White Book, Under Order 5 of the English Rules of the Supreme Court, rule 2 lays down what proceedings must be begun by writ; rule ~ the proceedings which must be begun by originating summons; rule 4, the proceedings which may be begun either by writ or originating summons; rule 5 proceedings that may begun by motion or petition. The Zambian rules are much more rigid. Under Order 6, rule 1, every action in the courl must be commenced by writ, except as otherwise provided by any written law or the High Court rules." It is therefore clear that there is no case in the High Court where there is a choice between commencing an action by Writ of Summons. This therefore means that where a matter is brought to the High Court by any other originating process when it should be commenced by writ, the court has no jurisdiction to make any declaration. We have seriously considered the detailed and quite ingenious argument of Mr. Mubanga in trying to justify the invocation of Order 53 of the RSC (14). We do not accept that reasoning. We agree J34 with Mr. Mainza that as per order 6, rule (1) of the High court rules, every action in the High Court must be commenced by writ except otherwise is provided by any other written rule or High court rules. Therefore we are satisfied that a fresh action to impeach a consent judgment has to be commenced by way of a writ in view of the fact that the Respondent was no a party to the consent order. Our view is even buttressed by the fact that the judicial review process has limited perimeters as amply stated in Fredrick Jacob Titus Chiluba and the Attornev General (5). We also agree with Mr. Silwamba SC., that there was no contention on the value of property. In conclusion, we hold that the procedure adopted by the Respondent of commencing this action to impeach the Consent judgment and the subsequent orders issued by the Subordinate Court and the subsequent directives of the Commissioner of Lands was wrong. As was held in the case of Joseph Gereta Chikuta V Chipata Rural Council (3) on the wrong mode of commencing actions, the result is that, the court below had no jurisdiction to make valid orders. So the appeal has merit. It succeeds. J3 5 Before concluding our Judgment we feel compelled to make these observations that the Ministry of Lands has time and again caused confusion and unwarranted costs to people seeking land in Lusaka in particular. A number of cases have come to court where the same stand has been allocated to more than one claimant under some very questionable circumstances. Procedures laid down to giving notices to holders of land have been completely ignored. In the case before us, the Respondent on record was a holder of title to the stand, which according to the records was re-allocated to somebody else. Because of these confusions, which are avoidable by careful scrutiny of records and proper administration of allocating land, we are in difficulties in condemning any of the parties to costs. However taking into account the role-played by the 3rd Appellant, we deem it fit to condemn the 3rd Appellant in costs for the Respondent. So costs of this appeal should be borne by the 2nd and 3rd Appellants. L. P. Chibesakunda SUPREME COURT JUDGE no We are therefore, satisfied that the Industrial Relations Court rightly found that the Respondent properly invoked Clause 6. These are findings of fact and Section 97 of Cap 369 (5) bars an appeal lying from the Industrial Relations Court to this Court. On ground 3 we are also satisfied that the evidence on record is that the court found that the Respondent commenced disciplinary proceedings, they abandoned these proceedings. Therefore, ground 2 also has no merit. In conclusion the appeal has no merit. We dismiss it, and we make no order on costs. L. P. Chibeskunda SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE T. A. Kabalata ACTING SUPREME COURT JUDGE