Judith Njovu v Bered Enterprises Limited (Appeal No 364/2024) [2024] ZMCA 360 (7 October 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: JUDITH NJOVU AND ·, --·-··· 0 7 OCT 207.5 ~ ILR\-;():~/1,·:·t•• -~ t , / / / ' , . ,,., ., . ,..,,,,., ·-. 'l'J APPELLANT BERED ENTERPRISES LIMITED RESPONDENT Coram: Mchenga DJP, Majula and Muzenga, JJA On 16th September, 2025 and 7th October, 2025 For the Appellant : Mr. J. C Kalokoni with Mrs M. M. Manda, both of Messrs Kalokoni & Company For the Respondent: Mr. B. Mosha, Mr. H. Shamainda & Mr. C Nyangu, all of Mosha & Co JUDGMENT MAJULA JA, delivered the Judgment of the Court Cases referred to: 1. BP Zambia Pie v Interland Motors Ltd (2001} ZR 37 (SC} 2. Mukumbuta Mukumbuta & Others v Lubinga & Others (2003) ZR 55 (SC) 3. Petros Phiri v Road Development Agency Appeal No. 101/2022 J2 4. Narendra Valand & Others v Dipesh Shah & Another Appeal No. 124/2023 5. Water Wells Limited v Jackson (1984) ZR 98 6. Mwambazi v Mo rester Fanns Limited ( 1977) ZR 1 08 7. Morgan Naik v Simon Burgess & Others 8. Attorney General v E. B. Jones Machinist Ltd (2000) ZR 9. First Alliance Bank (Z) Ltd v Neighbours City Estates & Others (2018/ZMHC/450) 10. Zambia National Commercial Bank PLC v Morton Musanda and 58 Others (2018)ZMCC 14 11. Cavmont Bank Limited v John Mwansa Kalinde and 40 Others (SCZ Judgment No. 24 of 2018 12. PC Cheelo v ZCCM SCZ No. 27 of 1999 13. NB Mbazima v Reuben Vera SCZ No. 6 of 2001 14. NFC Africa Mining PLC v Techro Zambia Limited 15. New Plast Industries v Attorney General (2001) ZR 18 16. Mobil Zambia v Msiska ( 1983) ZR 86 1.0 INTRODUCTION 1.1 This appeal arises from the decision of the High Court by which the Appellant's action, grounded in claims for assault, battery and intimidation, was dismissed on account of alleged multiplicity of actions and abuse of the court process, the Appellant having earlier commenced proceedings in the Industrial Relations Court seeking damages for constructive dismissal. The Appellant, being dissatisfied with that ruling, has approached this Court contending that the trial Judge fell into error in law and in fact. J3 2.0 DECISION OF THE LOWER COURT 2.1 The learned Judge of the court below commenced by confirming that the court was properly seized with jurisdiction to entertain the Respondent's application. The issue identified for determination was whether the Appellant's action constituted an abuse of the court's process and duplicity. Having reviewed the pleadings and submissions, the court found that the Appellant had commenced a fresh action against the same parties, arising from the same set of facts and transactions, while another matter between the parties was already pending before a competent court. In the Judge's view, this conduct amounted to a multiplicity of actions. 2.2 The court considered the Appellant's contention that the Industrial Relations Division lacked jurisdiction to entertain tortious claims, thereby justifying the institution of separate proceedings. While acknowledging that the Industrial Relations Division indeed does not possess jurisdiction over tortious claims, the Judge nevertheless held that this did not entitle the Appellant to maintain parallel proceedings founded on the same facts. Rather, the Appellant ought to have commenced proceedings under the general list, wherein all reliefs could competently have been pursued. 2.3 In the result, the court held that the Appellant's conduct amounted to forum shopping and constituted an abuse of the court's process. The Respondent's application was accordingly granted, the writ of summons and statement of J4 claim were set aside, and the matter was dismissed with costs to the Respondent. 3.0 GROUNDS OF APPEAL 3.1 The Appellant has advanced this appeal on three principal grounds, each challenging the reasoning and conclusions reached by the learned trial Judge. The grounds of appeal were couched as follows: 1. That the learned trial judge erred in law and fact when she held that the plaintiff's action in the High Court seeking damages for assault, battery and intimidation amounted to a multiplicity of actions, duplicity and abuse of court process on account of an earlier action commenced in the Industrial Relations Court seeking damages for constructive dismissal when the two matters address different questions of law and with no chance of conflicting decisions ever being rendered by the two courts at all. 2. The lower court erred in law and fact by denying the Appellant a citizen of Zambia access to justice by barring the Appellant from seeking any further reliefs. 3. That the learned trial Judge erred in law and fact when she passed the ruling dismissing the Plaintiff's matter for assault and battery on alleged abuse of court process and multiplicity of action contrary to the current settled law. JS 4.0 APPELLANT'S ARGUMENTS 4.1 Written heads of arguments were filed on 23rd December 2024. In respect of ground one, Counsel for the Appellant submitted that the learned trial Judge fell into error when she held that the action commenced in the High Court for assault, battery and intimidation amounted to a multiplicity of actions on account of the earlier action in the Industrial Relations Court for constructive dismissal. It was contended that the two matters address wholly distinct subject matters, such that there is no risk of conflicting or undermining decisions. 4.2 In support of this proposition, counsel relied on the decision of the Supreme Court in BP Zambia Plc v Inter land Motors Ltd, 1 where it was held that the mischief against multiplicity of actions arises only where a party litigates the same subject matter piecemeal in different fora, thereby exposing the administration of justice to the danger of conflicting decisions. It was argued that where the causes of action are different, the principle does not apply. 4.3 Counsel further cited Mukumbuta Mukumbuta & Others v Lubinga & Others, 2 in which duplicity was defined as involving parallel or duplicate suits between the same parties, over the same subject matter, and raising common questions of law and fact. According to counsel, none of these elements were satisfied in the present case, as the High Court claim for assault and battery is legally and factually distinct from the J6 claim for constructive dismissal before the Industrial Relations Court. 4.4 Reliance was also placed on Petros Phiri v Road Development Agency,3 where the Court held that multiplicity does not arise unless there has been a final judgment by a court of competent jurisdiction on the same issues, and clarified that res judicata, akin to multiplicity, requires identity of cause, parties, and opportunity to litigate. Counsel contended that these requirements are absent here. 4.5 Finally, counsel invoked Narendra Valand & Others v Dipesh Shah & Another, 4 which reaffirmed that multiplicity presupposes the same issues being pursued by the same parties before different courts concurrently. It was argued that since the Industrial Relations Division is seized with a claim for constructive dismissal, while the general list action is confined to tortious claims of assault and battery, no such concurrency or duplication arises. 4.6 Turning to ground two, counsel for the Appellant contended that the lower court erred in dismissing the matter on grounds of multiplicity, a decision which effectively barred the Appellant from seeking further relief and amounted to a denial of justice, particularly since her claim had never been adjudicated on the merits by any competent court. It was argued that this position contravenes the guarantees of access to justice under Article 118(2)(a) and (e) of the Constitution of Zambia (Amendment) Act No. 2 of 2016, which enjoin the courts to ensure that justice is done without J7 discrimination and without undue regard to procedural technicalities. In support of this position, reliance was placed on the decision of the Supreme Court in Water Wells Limited vJackson (1984) ZR 98,5 where it was underscored that the defence on the merits is paramount, and where no prejudice would be occasioned to the Appellant, matters should be allowed to proceed to trial. Counsel further cited Mwamba.%i v Morester Farms Limited, 6 which affirmed that interlocutory applications should not have an extinguishing effect on the substantive matter, and that issues ought to be heard on their merits unless malafides, unreasonable delay, or improper conduct is demonstrated. 4.7 It was urged that in the present case, no malafides, delay, or impropriety could be attributed to the Appellant, and accordingly, the dismissal by the lower court was harsh, unjustified, and contrary to the interests of justice. 4.8 Moving on to ground three, Counsel contended that the trial Judge erred in dismissing the assault and battery claim on grounds of multiplicity. It was argued that under section 85 of the Industrial and Labour Relations Act, the Industrial Relations Court's jurisdiction is confined to labour matters and does not extend to tort claims. Reliance was placed on Morgan Naik v Simon Burgess & Others, 7 where it was held that jurisdiction is everything, and on Attorney General v E. B. Jones Machinist Ltd, 8 affirming that estoppel cannot override statute. )8 4.9 The Appellant's tort claim in Cause No. 2024/HP/0810 was distinct from the labour dispute 1n Cause No. 2024/HP/IR/240, with no risk of conflicting decisions or prejudice to the Respondent. The dismissal, counsel argued, denied the Appellant justice, as the tort claim had never been heard on its merits and was properly before the High Court general list. 6.0 RESPONDENT'S ARGUMENTS 6.1 In contesting the appeal, Counsel for the Respondent filed their heads of argument on 10th June, 2024. They maintained that the Appellant's action in the High Court was a duplication of proceedings, since an earlier suit between the same parties founded on the same facts was already pending before the Industrial Relations Division. This, it was argued, amounted to forum shopping and abuse of court process. 6.2 Reliance was placed on Order 18 Rule 19(l)(d) of the Supreme Court Rules of England, 1999 Edition, empowering courts to strike out actions that are frivolous, vexatious, or otherwise an abuse of process, and on section 13 of the High Court Act, Cap. 27, which requires courts to administer law and equity concurrently to avoid multiplicity of actions. 6.3 Authorities were cited in support of this position. In BP Zambia Plc v Interland Motors Ltd,l the Supreme Court underscored that litigants are not permitted to advance the same grievances piecemeal across multiple fora. Similarly, in First Alliance Bank (ZJ Ltd v Neighbours City Estates & J9 Others,9 the High Court emphasized that where the parties, facts, and reliefs coincide, the initiation of separate actions constitutes an abuse of Court process. On this basis, Counsel submitted that the trial Judge was correct to strike out the Appellant's claim and that grounds one and three of the appeal are without merit. 6.4 In respect of ground two, Counsel for the Respondent submitted that the lower Court rightly set aside the writ of summons for duplicity of actions and abuse of process, and that the Appellant's claim of being denied access to justice was unfounded. It was argued that the Appellant ought to have pursued all remedies in one action before the High Court rather than commencing parallel proceedings. Reliance was placed on Zambia National Commercial Bank PLC v Morton Musanda and 58 Others, 10 which clarified that the Industrial Relations Court remains a division of the High Court, and on Cavmont Bank Limited v John Mwansa Kaltnde and 40 Others, 11 affirming that the High Court is competent to handle such disputes, consistent with PC Cheelo v ZCCM. 12 Counsel further cited NB Mbazima v Reuben Vera, 13 advising parties to proceed in the High Court where jurisdictional uncertainty arises, and NFC Africa Mining PLC v Techro Zambia Limtted,14 which emphasized strict adherence to Court rules. 6.5 On this basis, it was submitted that the appeal is devoid of merit and should be dismissed with costs. JlO 7.0 HEARING OF THE APPEAL 7.1 The appeal was heard on 16th September, 2025. Mr. Kalokoni commenced submissions by indicating reliance on the filed heads of argument. He contended that the proper mode of commencement of proceedings is prescribed by statute and not dictated by the nature of the reliefs sought. In support, he cited New Plast Industries v Attorney General, 15 and argued that the learned trial Judge erred in suggesting otherwise. He further referred to Mobil Zambia v Msiska,16 where it was held that taking lawful procedural steps to secure a tactical advantage does not, of itself, amount to an abuse of Court process. 7 .2 In response, Mr. Mosha submitted that in matters of a hybrid nature, common sense must prevail. He indicated that he was equally relying on the Respondent's heads of argument, and argued that the High Court General List, being vested with unlimited jurisdiction, was competent to determine all the claims in one proceeding. He therefore opposed the fragmented approach taken by the Appellant. 7.3 Mr. Shamainda also adopted the heads of argument and stressed that the law abhors multiplicity of suits. 7.4 In reply, Mrs. Manda observed that the notice of complaint was anchored on constructive dismissal, while the writ of summons was founded in tort. She maintained that the causes of action were distinct and thus incapable of producing conflicting decisions. Jll 8.0 DECISION OF THIS COURT 8.1 We have given anxious consideration to the record of appeal, the submissions of learned counsel, and the authorities cited in support thereof. We now proceed to examine each ground of appeal in turn. 8.2 Multiplicity of Actions and Abuse of Process - Ground One The learned trial Judge, with respect, fell into error in concluding that the Appellant's action for assault, battery and intimidation amounted to a multiplicity of proceedings and an abuse of process by reason of the earlier action in the Industrial Relations Court. The principle against multiplicity is only engaged where concurrent suits involve the same issues between the same parties, thereby exposing the administration of justice to the risk of conflicting determinations. The Supreme Court in BP Zambia Plc v Interland Motors Ltd1 was clear that the mischief lies in litigants parceling out the same grievances piecemeal across different fora. That is not the situation in this case. 8.3 The Industrial Relations proceedings were concerned with constructive dismissal, a cause of action founded in contract, whereas the present claim is in tort, specifically assault and battery. Each raises different factual and legal questions. The test for duplicity, as stated in Mukumbuta Mukumbuta & Others v Lu.binga & others,2 requires identity of parties, subject matter, and questions of law and fact. That threshold was not met here. J12 8.4 Denial of Access to Justice - Ground Two We are also persuaded by the Appellant's contention that the dismissal of her tort claim had the effect of barring her from ever having her grievances adjudicated on their merits. This runs contrary to the constitutional guarantee of access to justice under Article 118(2)(a) and (e) of the Constitution, which requires courts to ensure that justice is delivered without undue regard to procedural technicalities. 8.5 The Supreme Court in Water Wells Ltd v Ja.c:ksons underscored that adjudication on the merits is paramount and should not be defeated by procedural technicalities where no prejudice is occasioned. Likewise, in Mwambazi v Morester Fanns Ltd,0 it was emphasised that interlocutory processes should not extinguish substantive rights save in cases of malafi.des, unreasonable delay, or abuse. None of these disqualifying factors were present here. The dismissal was therefore harsh, disproportionate, and amounted to a denial of justice. 8.6 Dismissal of the Assault and Battery Claim - Ground Three The striking out of the assault and battery claim on the ground of multiplicity was equally erroneous. Section 85 of the Industrial and Labour Relations Act expressly confines the jurisdiction of the Industrial Relations Court to labour and employment disputes. It does not extend to tortious claims. This principle is fortified by Morgan Naik v Simon Burgess & Others7 where it was held that ''.jurisdiction is J13 everything'' and proceedings without jurisdiction are a nullity. The Supreme Court in Attorney General v E. B. Jones Machinist Ltd8 further held that estoppel cannot override statutory limits on jurisdiction. It follows that the Appellant was correct to bring her tort claim under the general list of the High Court. 8. 7 To strike out that claim on the basis of alleged duplicity was to conflate two distinct causes of action and to unjustly deprive the Appellant of a legitimate remedy. As we affirmed in Narendra Valand & Others v Dipesh Shah & Another, 4 multiplicity presupposes that the same issues are being concurrently pursued. In the aforementioned Na.rendrcl' case, we stated the following: 'The doctrine of multiplicity of actions rides on the deploying of same issues by same parlies before different courls to run concurrently. This was the position the Supreme Court took in the Hamalambo case (supra)." 8.8 That was plainly not the situation in the case in casu. 9.0 CONCLUSION 9.1 In the result, we are satisfied that the Appellant's claims before the High Court were legally and factually distinct from those pursued in the Industrial Relations Court. The dismissal of her action on the basis of multiplicity and abuse of process was, in our view, erroneous and had the further effect of unjustly denying her access to justice, contrary to Article 118(2) of the Constitution. We also find that the • J14 tortious claims squarely fell within the jurisdiction of the High Court general list and could not properly be struck out for duplicity. 9.2 Accordingly, we hold that the Appellant has succeeded on all three grounds of appeal, which are hereby upheld. The matter is remitted to the High Court for trial before a different Judge. 9.3 Costs shall abide the outcome of the proceedings in the Court below. . .... . ..... .. .. · z:1t_ C. F. R. Mchenga . DEPUTY JUDGE PRESIDENT B. M. ajula COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE