Kagoli Chizyuka (Suing as Administrator of the estate of the late Justin and Sabbinah Chizyuka) v Charity Banda and 25 Others (2020/HP/0111) [2022] ZMHC 109 (25 March 2022)

.. IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: R- ,~ - ') - "- .... .._ ... ..._ 1 • , - 0 AL . - ~------i . RE cs-FR:;;·- -· " 2020/HP/0111 KAGOLI CHIZYUKA (Suing as Adm -.-.. C,·T'\t"' tor LU';; of the estate of the late Justin and Sabbinah Chizyuka) TIFF AND CHARITY BANDA AND 25 OTHER KNOWN DEFENDANTS (appearing in the schedule attached) AND OTHER UNKNOWN DEFENDANTS CHILANGA DISTRICT COUNCIL 1ST DEFENDANTS INTENDED 2ND DEFENDANT BEFORE THE HONOURABLE MRS. JUSTICE M. C. KOMBE For the Plaintiff Ms. E. L Practitioners Sitali-Messrs Corpus Legal For the 1s t Defendant: Mr. C. Phiri-Messrs Mwansa-Phiri, Shilimi & Theo Intended 2 nd Defendant: Ms. E. Nzima-In house Counsel-Chilanga District Council RULING Cases referred to: 1. Hotelier Limited Ody's Works Limited v. Finsbury Investments Limited (2012)1 Z. R 17. 2. Attorney General v. Tall Supreme Court Judgment No.5 of 1995. 3. Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) Z. R 172(8. C). 4. Suhayl Duhia v. Samir Karia and Citibank Zambia Limited Appeal No.107 of 2015. 5. Attorney General, Movement for Multi-Party Democracy v. Akashambatwa Mbikusita Lewanika & Others (1994) ZR 164. 6. Hamusonde Mweemba v. Kasongo and Zambia State Insurance Corporation Ltd (2006) ZR 101. 7. Abel Mulenga and Others v. Chikumbi and Others (2006) Z. R 33. Legislation and other material referred to; 1. The High Court Rules, Chapter 27 of the Laws of Zambia. 2. Supreme Court Practice Rules of England,1965 (1999 Edition). This is a Ruling relating to the Plaintiffs application for an Order to join Chilanga District Council as the 2nd Defendant. The application is made pursuant to Order 14 rule 5 of the High Court Rules, Chapter 27 of the Laws of Zambia as read together with Order 15 rule 6 of the Rules of the Supreme Court, 1965 (White Book) 1999 Edition. The application is supported by an affidavit deposed to by KAGOLI CHIZYUKA the Applicant herein and the Administrator of the estate of the late Justin and Sabbinah Sebbie Chizyuka. He deposed that by virtue of being the Administrator of the deceased estates, on 13th November, 1993, he was granted Certificate of Title for -R2- Plot L4652/M, Lusaka West. A copy of the said Certificate of Title was exhibited and marked "KCl ". That on dates unknown, he discovered that the Defendants had erected some structures on the land without any license or consent from himself or any of the beneficiaries of the estate of the late Justin and Sabbinah Sebbie Chizyuka. Following this discovery, he wrote to the Defendants on 10th June, 2019, requesting them to purchase the portions of land they were occupying or that the estate would take legal action since the Defendants were not lawful owners of the land. Copies of the said letters were exhibited and marked "KC2." That despite several reminders, the Defendants neglected to vacate the land and remained in occupation of the land without consent or any license. Due to their unwillingness to vacate the land, he, through Messrs Corpus Legal Practitioners instituted an action against the Defendants on 13th November, 2020. It was further deposed that on 4 th December, 2020, the Defendants served his lawyers with a copy of their Defence to this action in which -R3- the Defendants alleged that Chilanga District Council and Namalombwe Ward Development Committee sought to re-plan the properties occupied by the Defendants and had their occupancy on their said properties legalized. A copy of the Defence filed by the Defendants was exhibited and marked "KC4." That he was advised that the presence of the Intended 2nd Defendant before the Court was necessary to ensure that all matters in dispute may be effectively and completely determined and adjudicated upon concurrently and that no prejudice would be occasioned to the Defendants by the grant of the order. It was therefore desirable and in the interest of justice that this Court grants the application for joinder of the Intended 2nd Defendant. In opposing the application, the Intended 2nd Defendant filed an affidavit in opposition on 21 st February, 2022 deposed to by MWAMBA MULENGA the Town Planner in the employ of the Intended 2nd Defendant. -R4- He deposed that he had read the Plaintiffs affidavit in support of the summons to join the proceedings and that Plot 14652/M Lusaka West was not on their records. That Namalombwe Ward Committee requested the Intended 2nd Defendant to legalize and re-plan some areas within the district, however no efforts were made by the Intended 2nd Defendant to legalize or re-plan any of the areas requested by the stated Ward Development Committee. That the Intended 2nd Defendant did not have its records of the property numbers referred to in the Plaintiffs affidavit labelled and exhibited "KC4." In response to paragraph 12 of the Plaintiffs affidavit, it was deposed that a Ward Development Committee did not have the authority to legalize or re-plan land. He deposed that further to the above, the Intended 2nd Defendant was not a planning authority, therefore it could not and did not re-plan any land. However, the Intended 2nd Defendant could only recommend to -RS- repossess or re-plan to the Commissioner of Lands and to Lusaka Provincial Planning Authority. That this matter could be effectively and completely determined without adding the Intended 2 nd Defendant to the matter. He added that the Intended 2nd Defendant might be called as a witness to these proceedings, as opposed to being added to the matter. At the hearing of the application learned counsel for the Plaintiff, Ms. E. L Sitali relied on the affidavit and skeleton arguments filed in support of the application. In the skeleton arguments, counsel argued this application under two sub headings as follows: 1) Whether this Honourable Court has the power to grant an order for joinder of the Intended 2nd Defendant. Under this heading, counsel submitted that the Court was vested with authority to join a party to these proceedings by virtue of Order 14 rule 5(1) of the High Court Act, Chapter 27 of the Laws of Zambia which provides as follows: -R6- "(1) If it shall appear to the Court or a Judge, at or before the hearing of a suit, that all the persons who may be entitled to, or claim some share or interest in, the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the Court or a Judge may adjourn the hearing of the suit to a future day, to be flxed by the Court or a Judge, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be." Counsel also referred to the case Hotelier Limited Ody's Works Limited v. Finsbury Investments Limited 111 where Judge Mutuna held that Order 14 rule 5 of the High Court Rules should be read with order 15, rule 6, subrule 4 of the White Book. She further referred to Order 15 rule 6(2)(b) of the Rules of the Supreme Court of England 1965 (White Book) 1999 edition on joinder of parties. It was submitted that the Court could therefore order joinder of any party who may be entitled to or claim some share or interest in the subject matter of any suit. She submitted that this Court was empowered to join the Intended 2 nd Defendant to these proceedings in -R7- the event that the Plaintiff demonstrated that it was in the interest of justice to do so. 2) Whether the Plaintiff had demonstrated sufficient reasons for joinder of the Intended 2nd Defendant. Under this heading, it was submitted that it was in the interest of justice that the Intended 2nd Defendant be joined to this suit because the Defendants had made allegations that required the Intended 2nd Defendant's answer to ensure that all the issues before this Honourable Court were determined in full . The case of the Attorney General v. Tall12 1 was referred to where the Supreme Court stated thus: "In our view, without prejudicing the outcome of the trial court's judgment, but going by the documentary and oral evidence on record, the joining of the Attorney-General in these proceedings would be necessary to ensure that the matters in the cause may be effectually and finally determined and adjudicated upon and put an end to any further litigation. Both our order 14 and the English order 15 as well as s13 of Cap 50 are intended to avoid a multiplicity of action." She argued that in the case of Hotelier Limited Ody's Works Limited it was held that Order 14 rule 5 served the purpose of ensuring that all -R8- persons who were interested in a dispute or may be affected by it were heard at the same time. This served the purpose of affording them an opportunity to be heard, bringing finality to proceedings once and for all and to avoid a multiplicity of actions and conflicting decisions. She reiterated that the Intended 2nd Defendant was an interested party in these proceedings because they had been named by the Defendants as the party that allegedly legalized their occupation on their Plaintiffs property. It was therefore necessary to join them to these proceedings to ensure that all issues were determined at the same time to ensure finality to this action. It was contended that all matters in controversy between the Plaintiff, Defendants and Intended 2nd Defendant, ought to be determined in finality without leaving doors open for further litigation over the same issue. Counsel submitted that the foregoing principle was confirmed in the case of Wilson Masauso Zulu v. Avondale Housing Project Limited 131 wherein the Supreme Court stated the following: "I would express the hope that trial courts will always bear in mind that it is their duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality. A -R9- decision which, because of uncertainty or uncertainty or want of finality, leaves the doors open for further litigation over the same issues between the same parties can and should be avoided. In the circumstances of this case I believe that it is the view of all the members of this court that the ends of justice will be met by remitting the claim in relation to the goods back to the High Court with the direction that the learned trial commissioner do make all the necessary findings and thereupon do make all the necessary orders and awards. I would, accordingly, so order." It was therefore their submission that the Intended 2nd Defendant ought to be joined as a party since its presence before the Court was necessary to ensure that all matters in controversy between the parties should be completely determined and adjudicated upon. It was argued that the Intended 2 nd Defendant ought to be joined as it had been cited by the Defendants as a party which sought to re-plan and legalize the properties illegally occupied by the Defendants of which the property was owned by the Plaintiff. Counsel submitted that no prejudice would be occasioned to the parties by the grant of an order for joinder but conversely it would serve the -RlO- interests of justice and allow this Court to determine all matters 1n dispute between the parties. In her oral submissions, counsel reiterated her submissions in the skeleton arguments. She submitted that it was necessary to join the Intended 2nd Defendant to the proceedings to avoid multiplicity of actions and ensure complete resolution of all issues in dispute between the parties. In response to a question by the Court on what cause of action they would have against the Intended 2nd Defendant supposing the Court joined them, counsel submitted that the action was for illegal occupation and the answer the Defendants gave was that their land was re-planned. She argued that if that was the case, they had a case against the Council because it was done without the knowledge of the Plaintiff and they would also aver that it was illegally done because the land was on title. Counsel for the 1st Defendant did not object to the Plaintiffs application for joinder. -Rll- Learned counsel for the Intended 2nd Defendant Ms. Z. Nzima relied on the affidavit filed into Court and submitted that they should not be added as a party but that they should only be called as a witness. She submitted that in view of what the Defendant contended, the land in question was not re-planned by the Council as it had no authority to do so. They therefore did not agree that they re-planned the land in contention. In reply, Ms. Sitali submitted that the Ward Development Committee worked under various Councils and whether or not the Council was the authority that re-planned, they nonetheless had a role to play in that process and that role was what was in question in this matter. She argued that if they were just a witness then in the event that evidence was led during trial that showed that the Council mishandled the process, this Court would be precluded from making any order against it because they would be a non-party. It was submitted that the very fact that the Council had agreed that they could be called as a witness was prima facie evident that they had something to say regarding the dispute . -R12- She prayed that the Council be added to ensure that issues in contention were resolved. Counsel also asked for costs because the Defendants were the ones who mentioned the Council but did not take any steps to join them as a party. I have carefully considered the submissions made by the parties and the affidavit evidence adduced. By this application, I have been called upon to determine whether the Plaintiff is entitled to an Order for joinder of the Intended 2 nd Defendant to these proceedings. The gist of the Plaintiffs argument is that the Defendants in their Defence alleged that Chilanga District Council and Namalombwe Ward Development Committee sought to re-plan the properties occupied by the Defendants and had their occupancy on their said properties legalized. The Plaintiff is therefore of the view that the presence of the Intended 2nd Defendant before the Court is necessary to ensure that all matters in dispute in this matter may be effectively and completely determined and adjudicated upon concurrently. The Defendants do not object to the Plaintiffs application to have the Intended 2nd Defendant joined to these proceedings. -R13- The Intended 2 nd Defendant however argues that Namalombwe Ward Committee requested them to legalize and re-plan some areas within the district. However, no efforts were made by the Intended 2 nd Defendant to legalize or re-plan any of the areas requested by the stated Ward Development Committee. That they did not even have records of the property numbers referred to in the Plaintiffs affidavit in support. It is the Intended 2 nd Defendant's contention that it is not a planning authority, therefore it could not and did not re-plan any land. However, the Intended 2 nd Defendant could only recommend to repossess or re plan to the Commissioner of Lands and to Lusaka Provincial Planning Authority. That this matter could be effectively and completely determined without adding the Intended 2 nd Defendant to the matter but that they could be called as a witness to these proceedings, as opposed to being added to the matter. This application is anchored on Order 14 rule 5(1) of the High Court Rules provides for non-joinder of parties as follows: "(l) If it shall appear to the Court or a Judge, at or before the hearing of a suit, that all the persons who may be -R14- • entitled to, or claim some share or interest in, the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the Court or a Judge may adjourn the hearing of the suit to a future day, to be fixed by the Court or a Judge, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be. In such case, the Court shall issue a notice to such persons, which shall be served in the manner provided by the rules for the service of a writ of summons, or in such other manner as the Court or a Judge thinks fit to direct; and, on proof of the due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause." From the above rule, the Court or a Judge h as th e powers to j oin any p erson as Plaintiff or Defenda n t a t or b efore th e h earing of a suit, if such p erson m ay b e entitled to, or claim s ome sh are or interes t in, th e subject-matter of th e suit or is likely t o be affected by th e result. I am fortified by the ca s e of Suhayl Duhia v. Samir Karia and Citibank Zambia Limitedl41, wh ere the Suprem e Court r eitera ted the net effect of Ord er 14 Rule 5(1) of the High Court Rules a t p ages 13 -1 4 as follows: "Our reading of both Order XIV rule 5( 1) of the High Court Rules and Order 15 rule 6(3) shows that an application to -Rl S- . L be made to these two rules, the following basic conditions must be met: i) There must be a person who may be entitled to, or claim some share or interest in, the subject matter of the suit, or who may be likely to be affected by the result; ii) The persons presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; iii) The affidavit in support or the pleadings must establish a nexus with the person sought to be joined to the proceedings. "(underlined for emphasis). From this case, it is clear that for a person to be joined to the proceedings, the affidavit in support of the application or the pleadings must establish a nexus with the person sought to be joined. The principle that for a Court to order joinder, the person must be entitled to, or claim some share or interest in, the subject matter of the suit, or who may be likely to be affected by the result was also illustrated by the Supreme Court in the cases of Attorney General, Movement for Multi-Party Democracy v. Akashambatwa Mbikusita Lewanika & -R16- • . . • Others(Sl and Hamusonde Mweemba v. Kasongo and Zambia State Insurance Corporation Ltd(61 where it was held that: "A court can order a joinder if it appears to the Court or judge that all person who may be entitled to or claim some share or interest in the subject matter of suit or who may be likely to be affected by the result require to be joined." It is imperative to note from the authorities above that whenever a party has a direct and substantial interest in an order which a court may make in a matter, that party must be joined to the action unless he specifically waives his right to be joined. However, as stated in the Abel Mulenga and others v. Chikumbi and others(71 the mere fact that a party may have been affected by the decision of the court does not clothe them with sufficient interest to be joined in the dispute. What is therefore paramount in an application for non -joinder is that the person to be joined to the proceedings ought to show that they have a direct and substantial interest in the subject matter of the action or that they are likely to be affected by the outcome thereof. In paragraph 9 of their defence, the Defendants aver that: -R17- • "The Defendants further say that the Chilanga District Council re-planned those properties and the Nalombwe Ward Development Committee approached both the Chilanga District Council and the Commissioner of Lands to legalise the occupation by the Defendants of the pieces of land which had been re-planned." The Plaintiff contends from this evidence that whether the Council was the authority that re-planned or not, they nonetheless had a role to play in that process and that role was what was in question in this matter. Counsel has argued that if they were just a witness then in the event that evidence was led during trial that showed that the Council mishandled the process, this Court would be precluded from making any order against it because they would be a non-party. It is further contended that the very fact that the Council had agreed that they could be called as a witness was prima facie evident that they had something to say regarding the dispute. The Intended 2nd Defendant contends that the land in question was not re-planned by the Council as it had no authority to do so. However, the Intended 2nd Defendant could only recommend to repossess or re-plan -R18- • • to the Commissioner of Lands and to Lusaka Provincial Planning Authority. Paragraph 9 of the Defendant's Defence is to the effect that Chilanga District Council re-planned those properties and alleges further that the Nalombwe Ward Development Committee approached both the Chilanga District Council and the Commissioner of Lands to legalise the occupation by,the Defendants of the pieces of land which had been re planned. The letter at page 44 of the Defendants bundles of documents dated 19th January, 2016, and addressed to the Council Secretary of Chilanga District Council from Namalombwe Ward Councillor reads as follows: "Dear Madam, REPLANNING AND CHANGE OF USE OF LAND ON PROPERTIES NO. L/4627/M,L/4628/M,L/4632/M,L/4638/M,L/4639/M,L/4640/M,L/46 46/M,L/6229/M,L/6233/M,L/6234/M,L/6262/M The above listed properties w ere all on 14 y ears leasehold which have expired from the said properties have been encroached . I request that they will be legalised as s ettlem ents. " -R19- • The letter clearly states that the Namalombwe Ward Councillor was requesting the Council to legalise the settlements in question as they were being encroached. Considering the position taken by the Plaintiff and the position taken by the Defendants, it will be important for the Court to establish if at all the Intended 2nd Defendant was involved in the process as alleged by the Defendants. Therefore, I do not accept the position taken by the Intended 2nd Defendant that they may be called as a witness. This is because, if the Plaintiff succeeds at the trial of this matter, the Intended 2nd Defendant may be likely to be affected by the result. As the Courts have guided, the affidavit in support or the pleadings must establish a nexus with the person sought to be joined to the proceedings. The affidavit evidence before Court and the pleadings have established a nexus with the Intended 2 nd Defendant to warrant an order of joinder. I am further of the view that it would be in the interest of justice to join the Intended 2nd Defendant to the proceedings to avoid a multiplicity of actions which the Courts have on several occasions frowned upon and -R20- a ensure that all disputes amongst the parties involved are resolved under one cause. The net result of my finding is that the Plaintiff has demonstrated that the Intended 2 nd Defendant may be likely to be affected by the result to warrant an order for joinder to these proceedings. I therefore join the Intended 2 nd Defendant CHILANGA DISTRICT COUNCIL to these proceedings as 2 nd Defendant. In view of this Order, I invoke my powers under Order 3 rule 2 of the High Court Rules and grant leave to the Plaintiff to amend the writ of summons and statement of claim. The same should be filed on or before 22n d April, 2022. The parties shall appear for a status conference on 23rd May, 2022 at 08:30 hours . Considering the circumstances of the case, I make no orders as to costs. DELIVERED AT LUSAKA THIS 25th DAY OF MARCH, 2022 REPUBU C 0 ;;AM~:;:-·\ HIGH c;5u::R o:02:AM4 ! • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • M C KOMBE. J M. C. KOM E JUDGE 1_._P._0 B~X-50067 , L USAKA · ____ _ -R21-