Regina Mpampi v Danielle Stavio Morelli and Anor (Appeal No. 119/2024) [2024] ZMCA 337 (9 December 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) Appeal No. 119/2024 BETWEEN: REGINA MPAMPI AND 0 9 DEC 2024 APPELLANT DANIELLE STAVIO MORELLI 1 ST RESPONDENT GINO MORELLI 2ND RESPONDENT Coram: Kondolo SC, Banda-Bobo and Muzenga, JJA On 16th October, 2024 and 9th December, 2024. For the Appellant: Mr. M. Nkunika of Simeza, Sangwa Associates For the Respondents: Mr. Sako of Messrs Kumangwe Chambers JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. The People v Simon Mwanza & Gino Morelli - Cause No. SN/71/2019 2. Jonathan Van Blerk v The Attorney-General and 5 Others - SCZ/08/03/2020 3. Jonesco v Beard (1930) AC 298 4. Royal Bank of Scotland Pie v Highland Financial Partners LP and Others (2013) EWCA Civ. 328 5. Development Bank of Zambia & Livingstone Sawmills v Jet Cheer Development Co. (Zambia) Limited (2001) SMSC 115 ; 6. Takhar v Gracefield Development Ltd and Others (2019) UK SC 13 7. Bampi Aubrey Kapala and Joseph Busenga v Attorney General J 2 202/CC00ll 8. U-Rest Foams Limited vs Puma Botswana (Pty) and Colourfast Textile Printers (Pvt) Limited - SCZ Appeal No. 222/ 2016 9 . Atlantic Bakery v ZESCO - scz Appeal No. 47 /2026 10. HH Casualty and General Insurance Limited v Chase Manhattan Bank (2003) UK HL 6 11. Indeni Petroleum Refinery v Kafco Oil Limited and 3 Others - Appeal No. 207 of 204 12. BP Zambia Pie v Interland Motors Limited (2001) ZR 37 13. Annard Chinya v Zambia Airways Corporation Limited (1981) ZR 4 14. Owens Bank Limited v Brasco (1992) AC 443 15. African Banking Corporation Limited v Copper Harvest Foods Limited and 3 Others - Appeal No. 216/ 2023 16. Sikananu v Attorney General 2002/48/0762 17. Masauso Zulu v Avondale Housing Project (1982) ZR 172 18. Sithole v State Lotteries Board (1975) ZR 106 19. Kabwe Transport v Press Transport (1975 Limited) (1984) ZR 43 (SC) Legislation referred to: 1. High Court Rules, Chapter 27 of the Laws of Zambia. 2. The Rules of the Supreme Court of England (1999) Edition (White Book) Volume 1. 1.0 INTRODUCTION 1.1 The genesis of this appeal is from a decision rendered by Justice S. V. Siloka who disposed of the matter in the High Court by invocation of Order 14A of the Rules of the Supreme Court of England much to the dismay of the Appellant. This is what has triggered the appeal before us where we are being called upon to .. J3 interrogate whether the procedure under Order 14A was appropriately applied in casu. 1.2 Furthermore, whether the original judgment should have been set aside due to fraudulent misrepresentation. Additionally, we shall examine whether or not multiplicity of actions and res Judicata is applicable in the face of fraud. 2.0 BACKGROUND 2.1 On May 4, 2023, the Appellant initiated proceedings in the High Court to have a previous judgment (under cause No. 2013/ HN/ 036) set aside on the grounds that the judgment was obtained through fraud. 2.2 The Appellant argued that the evidence used to deliver the judgment, specifically evidence that led Justice Mwiinde Siavwapa to rule in favour of the Respondents, was based on fraudulent acts by the Respondents. 2.3 The Appellant referenced evidence from a prior case The People v Simon Mwanza & Gino Morelli,1 from the Subordinate Court in Ndola. The Appellant aimed to show that the contract of sale and deed of assignment used to obtain the favourable judgment for the Respondents were void due to fraud. ... J4 2.4 On May 24, 2023, the Respondents opposed the action to set aside the judgment, raising preliminary objections based on Order 14A and Order 33 of the Rules of the Supreme Court. The Respondents argued that the action was res Judicata and an abuse of court process, involving a multiplicity of actions. The Appellants, in reacting to this objection, contended that Order 33 was incorrectly applied and that Order 14A of the Rules of the Supreme Court (RSC) should not be used to dispose of matters on procedural matters. 3.0 DECISION OF THE LOWER COURT 3.1 On the evidence that was before him, the Judge in the court below set out the following issues as having arisen for determination, namely: (i) Whether the matter was rightly before the court; (ii) Whether the proceedings were a multiplicity of actions and an abuse of court process. (iii) Whether the proceedings were res-judicata; and (iv) Whether a High Court Judge can set aside a judgment of another High Court Judge. 3.2 Regarding the first issue, the Court below made a finding to the effect that the application was correctly before it as it had met the requirements of Order 14A. The court was further of the view that JS a wrong reference to Order 33 Rule 3 of the Rules of the Supreme Court was not fatal to the application. 3.3 From the standpoint of the court, the Appellant was challenging the judicial process that led to a judgment which is a separate cause of action. 3.4 Turning to the issue of when a judicial process can be impugned, the lower court drew inspiration from the guidance of the Supreme Court in Jonathan Van Blerk v The Attorney-General and 5 Others. 2 In the cited case the Apex Court stated that the judgment should have been obtained: In a manner which is not open and transparent; (i) (ii) By deception; and (iii) The claimant must establish a right to have the judgment to be set aside for fraud. 3.5 The court below found that the judgment in this case was obtained in an open and transparent manner after both parties were heard. That there was no deception in how the judicial process was triggered . 3.6 The learned Judge further noted that the allegation of fraud was also raised and considered by the Honourable Judge Mwiinde Siavwapa under cause No. 2013/ HN/ 036 and the same was J6 dismissed. Based on the foregoing, the learned Judge opined that there was multiplicity of actions. 3.7 The lower court further found that the Appellant could not refer to the outcome of a criminal trial in a civil case as this practice was prohibited. It was, therefore, the court's view that this matter was res-judicata and could not be litigated. 3.8 Ultimately, the learned Judge opined that all High Court judges have equal power and authority as per Section 4 of the High Court Act. That for a Judge to review another Judge's judgment, the claimant must establish that there was fraud which was not done in this case. 3.9 The matter was accordingly dismissed with costs. 4.0 GROUNDS FOR APPEAL 4.1 Dissatisfied with the Ruling of the court below, the Appellant filed a notice of appeal based on the following the grounds: 1. The Court below erred in law and fact when it made a finding that the judicial process employed in obtaining judgment under cause number 2013/HN/036 was unassailable for having been obtained in an open and transparent manner. 2. That the Court below erred in law and fact when it held that the commencement of the matter in cause number 2023/HP/0727 amounts to a multiplicity of actions J7 because there was no fraud and misrepresentation in the judicial process. 3. That the court below erred in law when it held that the Appellant could not refer to or rely on the evidence or result of criminal proceedings involving the second Respondent because the same is legally prohibited. 4. That the Court below erred in law and fact when it held that the Appellant had proffered no evidence independent from the criminal proceedings involving the second Respondent to demonstrate that the judgment under cause 2013/HN/036 was procured by fraudulent misrepresentation. 5. The court below erred in law when it held that the fraud in procuring the judgment as alleged by the Appellant is a "shaky ground" as it is reasonably possible that the Court of Appeal may overturn or set aside the conviction. the judgment delivered 6. The court below erred in law and fact when it held that it cannot set aside in 2013/HN/036 by Judge Mwiinde Siavwapa (as he then was) because he shares the same jurisdiction being a High Court Judge and there is no evidence of fraud established with certainity owing to the looming appeal in the second Respondent. the criminal proceedings involving 5.0 APPELLANT'S ARGUMENTS 5.1 The Appellant argues that the lower court wrongly invoked Order 14A, as it was not appropriate for resolving issues in this case, J8 particularly those involving fraudulent misrepresentation in the procurement of the original judgment. 5.2 The Appellant has highlighted the issues raised by the Respondent in the court below as follows: - Whether the proceedings involve a multiplicity of actions and abuse of the court process. - Whether the proceedings are res judicata in light of the judgment dated August 26, 2013, under cause number 2013/HN/036. - Whether the High Court Judge can set aside a judgment delivered by another High Court Judge based on fraudulent misrepresentation. 5.3 We have been referred to the explanatory notes in paragraph 14A/2/3 of the Rules of the Supreme Court as well as paragraph 14A/2/10 which explains a determination of a question of law or construction . 5.4 Atkin's Encyclopaedia of Court Forms has been drawn to our attention where the authors emphasise that the object of the order is to achieve finality at an interlocutory stage. The decision on a legal question should lead to a final resolution without needing a full trial. J 9 5.5 It is contended that a question raised under Order 14A should resolve the matter, claim, or issue in the action on its merits, resulting in the finality of that particular issue. The court should avoid going into the substantive aspects of the case if the determination of the procedural question would settle it. 5.6 It is highlighted by the Appellant that the questions raised by the Respondents were purely procedural, specifically about multiplicity of actions, res Judicata/ and whether one High Court Judge could set aside the judgment of another High Court Judge. The Appellant argues that these questions should not have been addressed under Order 14A since they did not relate to the substantive matter. 5.7 That the Appellant sought a declaration that a prior High Court judgment was obtained by fraudulent misrepresentation and was consequently seeking an order to set aside the High Court Judgment in cause 2013/ HP/ 1036. 5.8 Learned counsel explains that the dispute centres on whether the Appellant had signed a deed of assignment in favor of the first Respondent. That it was later found in criminal proceedings that the evidence submitted was fraudulently procured, leading to a conviction for fraud . J lO 5.9 It is argued that the lower court's judgment in the case should be set aside due to the fraudulent evidence presented by the Respondents. The main thrust of the case is that the prior judgment was obtained through fraud. 5.10 Learned counsel has submitted that the lower court held that the judicial process used to obtain the judgment in cause No. 2013/HN/ 036 was transparent and unassailable. That however, the issue at hand is not the transparency of the process but whether the evidence presented, which led to the finding that the deed of assignment signed by the Appellant, was fraudulent. 5.11 It has been submitted that the court below could not determine whether the judgment in cause No. 2013/ HN/ 036 was procured by fraud through an Order 14A application. This is because fraud must be proven after a full trial, not in a summary manner under procedural rules like Order 14A. 5.12 In support of the foregoing submission, reference is made to Lord Buckmaster's statement from the case of Jonesco v Beard, 3 where it is emphasised that to impeach a completed judgment on grounds of fraud, the particulars of the fraud must be provided and strict proof is required. Jll 5.13 In addition, the case of Royal Bank of Scotland Pie v Highland Financial Partners LP and Others4 is cited to further elaborate the legal framework for setting aside a judgment based on fraud. The highlighted legal principles require that there must be "conscious and deliberate dishonesty" related to the relevant evidence, action, or statement, and that the fresh evidence, discovered after the first judgment, must show that the court's previous decision was influenced by this fraudulent evidence . 5.14 Counsel explains that in an action to set aside a judgment based on fraudulent misrepresentation, the misrepresentation is made to the court itself. The fraud is considered a direct violation of the court's process, citing the case of Development Bank of Zambia & Livingstone Sawmills v Jet Cheer Development Co. (Zambia) Limited.5 5.15 It is stated that for a court to make a determination on setting aside a judgment procured by fraud, it must first examine the evidence of the alleged fraud or misrepresentation, which can only occur after a full trial where the Appellant has an opportunity to present their case. J12 5.16 Counsel reiterates the argument that the lower court erred by making a determination on fraud prematurely, at an interlocutory stage, without fully hearing the evidence. Ground two - Multiplicity of Actions and Res Judicata 5.17 The Appellant's argument in the second ground is that the court erred in law by holding that the commencement of cause No. 2023/HP/0727 constituted a multiplicity of actions. 5.18 The Appellant contends that when an action is to set aside, a judgment based on fraud, issues of res Judicata, multiplicity of actions, or abuse of court process do not apply. This is because the core issue involves fraud, which takes precedence over procedural concerns like those. 5 .19 It is argued that the new action (to set aside the previous judgment) is dependent on the first action in which the fraud is alleged. Therefore, the evidence tendered in cause no. 2013/HN/036 is crucial to proving the current case. 5.20 The Appellant argues that the lower court failed to appreciate that an action to set aside a judgment procured by fraud is a distinct cause of action. That the court mistakenly categorised it as a multiplicity of actions or res Judicata. The Appellant cites Jonathan Van Blerk v Attorney General and 5 Others2 to support the J 13 position that the cause of action for fraud arises once the evidence leading to the fraudulent judgment is presented. The lower court's decision to view the action as res judicata or an abuse of process is seen as a legal misdirection. 5.21 Reliance is placed on the Takhar v Gracefield Development Ltd and Others6 case, in which the Supreme Court confirmed that an action to set aside a judgment based on fraud is independent of the cause of action in the underlying dispute. It concerns the judicial process itself rather than the merits of the original case. The decision establishes that if a claimant can prove that a judgment was obtained by fraud, there can be no claim of res judicata or estoppel. 5.22 The Appellant contends that res Judicata does not apply when the judicial process is challenged on grounds of fraud. The Court of last resort in Jonathan Van Blerk v Attorney General and Others2 affirmed that res Judicata cannot be used to prevent the setting aside of a judgment that was fraudulently obtained . The core issue being challenged is the method by which the judgment was obtained, not the underlying dispute between the parties. J14 5.23 It is argued that the lower Court erred in law by holding that the action commenced by the Appellant was resjudicata. The Appellant contends that this was a misapplication of the legal principle. 5.24 Counsel clarifies that the issues in cause No. 2013/HN/036 and cause No. 2023/HP/0727 are not the same. The core issue in the new action is whether a judgment can stand when there is conclusive evidence of deception and fraud in obtaining it. The argument is that res Judicata cannot apply where the integrity of the judicial process itself is in question due to fraud. 5.25 Reference is made to Bampi Aubrey Kapala and Joseph Busenga v Attorney General/ which addresses the issue of abuse of process. The case highlights that an abuse of process can occur when an identical question already determined in a prior action is raised again. However, the Appellant argues that no previous court has adjudicated the issue of fraud as the basis for setting aside the judgment in cause No. 2013/HN/036. 5.26 It has been asserted that since no court has made such a determination, it cannot be considered re-litigation, and therefore, the argument of abuse of process does not apply. J15 5.27 Learned Counsel concludes by asserting that the Appellant's argument has merit and should succeed, as the action is not an abuse of process or barred by res Judicata. Grounds Three and Four 5.28 In the third and fourth grounds of appeal, the Appellant is unhappy with the refusal by the Court below of the Appellant placing reliance or result of criminal proceedings involving the second Respondent. The Learned Counsel explains that the evidence from the criminal proceedings involving the second Respondent forms the foundation of the Appellant's case. The Appellant sought to use this evidence to challenge the prior judgment, arguing that it had been obtained by fraud. 5.29 It is contended that the lower court prematurely ruled that the Appellant could not rely on the criminal evidence. The admissibility of such evidence is a matter for the trial court to decide and should not have been determined at this stage. The lower court's decision on this issue was made under an application of Order 14A, which was inappropriate for determining the admissibility of evidence. 5.30 Learned Counsel further argues that the lower court misdirected itself by focusing on the criminal verdicts rather than the evidence that led to those verdicts. The Appellant asserts that in civil cases, J l 6 parties are allowed to refer to the evidence presented in criminal trials, as opposed to relying on the criminal convictions themselves. 5.31 The Appellant's position is supported by decisions of the Apex Court, particularly in the case of U-Rest Foams Limited v Puma Botswana (Pty) and Colourfast Textile Printers (Pvt) Limited, 8 which held that it is permissible to rely on evidential material from criminal proceedings rather than on the criminal conviction itself. The key point is that the prohibition on using criminal outcomes in civil cases applies only to the criminal conviction or outcome, not to the evidential material leading to those outcomes. 5.32 The Appellant argues that all evidence and testimony leading to the criminal conviction are admissible in the civil case. The lower court's prohibition of this evidence was a misdirection since it should be addressed during trial, not at a preliminary stage. Ground Five - Error Regarding "Shaky Ground" for Fraud 5.33 In the fifth ground, the Appellant challenges the lower court's ruling, which held that the allegation of fraud was based on "shaky ground" because the Court of Appeal might overturn the conviction. The Appellant argues that this conclusion was speculative and inappropriate. J17 5.34 The Appellant contends that the lower court's reasoning was Aawed because it assumed the possibility of an appeal overturning the conviction, which is not a valid basis to dismiss the fraud claim at this stage. 5.35 The Appellant argues that they intended to rely on the testimonies and evidence from the criminal proceedings, not the conviction itself. Therefore, the outcome of the appeal against the conviction should not have any bearing on the present civil case in the lower court. 5.36 The Appellant refers to the Atlantic Bakery v ZESCO,9 case, where the Supreme Court held that a court should not volunteer issues for the parties. The court should limit its decision to the questions raised in the pleadings and should not expand or alter the boundaries of litigation beyond what the parties have raised. The court has no jurisdiction to introduce new issues or speculate on matters not pleaded by the parties. 5.37 Significantly, that just as the trial court cannot investigate issues beyond what has been pleaded, the court cannot consider or introduce issues beyond the motion brought by the parties. The court is only required to determine the specific issues raised and has J1 8 no business speculating on matters like the possible outcome of an appeal. 5.38 The Appellant submits that the lower court's finding that the fraud claim relied upon by the Appellant was on "shaky ground" was a complete misdirection. The court erred in making such a conclusion, especially when the proper issue was whether the fraud claim had merit based on the evidence presented. Ground Six - Error in Setting Aside Judgment 5.39 The Appellant argues that the lower court erred in holding that it could not set aside the judgment delivered in Cause No. 2013/HN/036 by Judge Mwiinde Siavwapa because both judges were of equal jurisdiction. The court also ruled that there was no evidence of fraud established due to the ongoing appeal in the criminal proceedings involving the second Respondent. 5.40 The Appellant submits that the lower court misdirected itself regarding the nature and effect of an action to set aside a judgment procured by fraud or fraudulent misrepresentation. The Appellant asserts that a judge with equal jurisdiction has the authority to set aside a judgment obtained by fraud, and the lower court's misunderstanding of this principle was an error. J 19 5.41 It is argued that under Section 4 of the High Court Act, a judgment procured by fraud can be set aside by another High Court judge, regardless of equal jurisdiction between judges. The Appellant cites the Jonathan Van Blerk v Attorney General and 5 Others2 case, which supports this principle. It is further noted that numerous authorities demonstrate that res Judicata is not a defence in cases involving fraud or fraudulent misrepresentation. 5.42 The Appellant refers to the English case of HH Casualty and General Insurance Limited v Chase Manhattan Bank, 10 where it was held that fraud vitiates judgments, contracts, and other legal outcomes. The principle is that once fraud is proven, it unravels all prior legal actions connected to the fraud. 6.0 RESPONDENT'S ARGUMENTS 6.1 The Respondent filed their headsof arguments on 9th October, 2024. The core of their submission in respect of ground one was that the arguments by the Appellant touching on the property of employing the procedure under Order 14 A in this matter constitutes a ground of appeal, which is not part of the memorandum of appeal. Since there is no leave of court, the Appellant's disguised grounds of appeal should not be considered as this would offend Order 10 Rule 9(3) of the Court of Appeal Rules. J20 6.2 Counsel for the Respondent submitted that determination of a matter with finality under Order 14A of the RSC also entails rendering the hearing of the matter on the merits irrelevant or otiose. 6.3 Counsel contended that Order 14A of the RSC can be employed in dismissing the substantive matter if the determination of the issue substantially disposes of it. The case of Indeni Petroleum Refinery v Kafco Oil Limited and 3 Others, 11 was cited to strengthen this proposition. 6.4 Pertaining to ground two, the Respondent's Counsel contended that commencement of these proceedings in the lower court amounts to multiplicity of actions in that nothing stopped the Appellant from merging her claims in this cause with those in 2021/ HP/585 cause. Put differently, nothing stopped the Appellant from claiming under cause 2021/HP/ 585 that which they seek to claim under this cause, which is the subject of this appeal. 6.5 They reference the case of BP Zambia Pie v Interland Motors Limited,12 where the court disapproved of the practice of a litigant deploying his grievances in various courts. The danger of allowing these proceedings to proceed is that the Court may J 2 1 deliver conflicting judgments or decisions, whch may bring the administration of justice into disrepute. 6.6 Moving on to the third and fourth grounds of appeal, the Respondents argue that the Appellant is attempting to disguise their intention to re-open a matter conclusively settled under Cause No. 2013/HN/036. The motivation of these proceedings is the conviction of the second Respondent in the criminal proceedings whose conviction has been appealed against. It was submitted that apart from the conviction of the second Respondent, the Appeallant has nothing to anchor these proceedings on. Solace ws placed on the case of Annard Chinya v Zambia Airways Corporation Ltd 13 where the Supreme Court held that the result of criminal trials cannot be referred to as proof of a fact which must be established in Civil Courts. 6. 7 The Respondents assert that the Appellant does not have new material to show that the judgment sought to be impunged was procured by fraudulent mispresentaion. 6.8 The gist of the response on ground five was that the lower court cannot be faulted on the basis that any appeal under the circumstances would have two possible outcomes, either an acquittal or confirmation. In this case, the Appellant's claim would J 22 collapse if the appeal resulted in an acquittal of the second Respondent. 6.9 Turning to ground six, the Respondent argues that the only instance in which a High Court Judge retains jurisdiction to set aside a judgment by another High Court Judge is when it is established that there is evidence to show that a judgment was fraudulently obtained. In this case, the earlier decision on pages 156 to 174 of the record of appeal shows that allegations of fraud regarding the deed of assignment and contracts were canvassed. 6.10 The Respondent avowed that the Jonathan Van Blerk2 case relied upon by the Appellant has been applied out of context as they have not established a right to have the Judgment under Cause 2013/HN/036 set aside for fraud. It is contended that the Jonathan Van Blerk2 case is distinguishable from the present case on the premise that in the former case, there was evidence that the compulsory acquisition was not in the public interest, but was meant to benefit private entities. 6.11 Fortification for the Respondent's submission was placed on the case of Owens Bank Limited v Brasco, 14 where it was observed that an unsuccessful party is not permitted to challenge an earlier judgment on the ground that it was obtained by fraud unless he can J 23 prove that the fresh evidence could not have been discovered with reasonable diligence before the judgment was delivered. 6.12 Based on the preceding, we were urged to dismiss the appeal with costs. 7.0 HEARING OF THE APPEAL 7.1 When the matter came up for hearing, both counsel relied entirely on the heads of argument that had been filed herein. 8.0 CONSIDERATION AND DECISION OF THIS COURT 8.1 We have meticulously examined the record and the well- researched submissions of learned Counsel about the appeal before us. The issues that emerge in the grounds of appeal are: 1. Whether the Judgment under cause No. 2013/HN/036 was unassailable; 2. Whether cause No. 2023/HP/0727 amounts to a multiplicity of actions; 3. Whether the Appellant could rely on evidence of criminal proceedings; 4. Whether there was independent evidence demonstrating that the Judgment under cause No. 2013/HN/036 was procured by fraudulent misrepresentation. S. Whether one High Court Judge can set aside a judgment by another High Court Judge. J 2 4 8.2 With regard to ground 1, we note that the court exercised its mind to the provisions of Order 14A and the explanatory notes in paragraph 14A/ 2/ 10 RSC and concluded that the application was appropriately before the court as it had met the requirements of Order 14A. The Judge was alive to the implications of adverting to Order 14A and placed reliance on the cases of African Banking Corporation Limited v Copper Harvest Foods Limited and 3 Others15 and Sikananu v Attorney General16 which explain the nature of Order 14A which is to determine a matter without a full trial. Upon invocation of this Order, the substantive matter becomes dismissed as the hearing is rendered irrelevant. 8.3 We have deeply reflected on the cases drawn to our attention on when a judgment can be impeached due to fraud. In the case of Takhar v Gracefield Development Ltd and Others, 6 the Law Lords in the United Kingdom expressed themselves as follows: "An action to set aside an earlier judgment for fraud is not a procedural application but a cause of action. As applied to judgments obtained by fraud, the historical background was explained by Sir George Jessell MR in Flower v Lloyd (1877) 6 Ch D 297, 299-300. Equity has always exercised a special jurisdiction to reverse transactions procured by fraud. A party to earlier litigation was entitled to bring an original bill in equity J25 to set aside the judgment given in that litigation on the ground that it was obtained by fraud." 8.4 In our jurisdiction, the Apex Court expressed themselves in the following manner in the case of Jonathan Van Blerk2 that: to "Res judicata cannot therefore be deployed terminate such proceedings as what is being impugned is the very process of how that judgment was obtained. We fully agree with the Court of Appeal on this point as well as the numerous authorities cited by the learned counsel for the Appellant in this regard. Allowing res judicata to be used as a shield in such circumstances would go against the values of a judicial system that judgments should be obtained in an open and transparent manner and not through deception." 8.5 After analysing these cases, the Judge believed that the judgment was obtained transparently and that there was no deception in how the judgment was triggered. Upon careful consideration, the attack on the judge's decision appears to be without merit. As an appel late Court, we will not reverse a finding of fact of a trial Judge unless it is shown that the finding was either perverse or made in the absence of any relevant evidence or upon a misapprehension of facts as elucidated in the case of Masauso Zulu v Avondale Housing Project. 17 Our reasoning is against the backdrop of the J 26 fraud allegation, which was considered under cause 2013/HN/036 and was consequently dismissed. 8.6 It is settled law that where there has been an allegation of fraud, it must be proved, and the standard of proof is higher than on a balance of probabilities. In the Sithole v State Lotteries Board18 it was held as follows: "If a party alleges fraud, the extent of the onus on the party alleging is greater than a simple balance of probabilities." 8. 7 In this case, the Court found that the Appellant had failed to prove that there was fraud. The consequence of this finding leads us to the second ground of appeal on whether there was a multiplicity of actions. 8.8 From our perspective, having found no proof of fraud under cause 2013/ HN/ 036 and that the judicial process could not be faulted, the commencement of the action under another cause 2021/ HP/ 1585 was a multiplicity of actions. We say so because the fraud issues were already dealt with in the earlier action. 8.9 Regarding on whether the Appellant could rely on the results of criminal proceedings, the Judge clarified that this is proscribed by the authority of Kabwe Transport Company Limited v Press > J27 Transport, 19 which guided that evidence arising out of criminal convictions may be used but using the outcome is prohibited. 8.10 It is plain from the aforecited case that indeed the parties can refer to the evidence which was adduced during a criminal matter. However, they are prohibited from using the outcome of the criminal proceedings. In this particular case, reliance is being placed on the process. However, in the view that we have taken, that the aspect of fraud had already been put to rest under cause 2013/HN/036, the attack on the trial Judge, in our view, cannot, therefore, be sustained. Furthermore, apart from the proceedings in the criminal matter, there is no other independent evidence that has been tendered before court. 8.11 Turning to the question as to whether the High Court Judge was on firm ground to decline the invitation to set aside the judgment of another High Court Judge of equal jurisdiction on the premise that it had been procured by fraudulent misrepresentation, from our perspective, the Judge was indeed on terra firma. The reasons are that Section 4 of the High Court Act, provides as follows: "Subject to any express statutory provision to the contrary, all the Judges shall have and may exercise, in all respects, equal power, authority and jurisdiction, and, subject as aforesaid, any Judge may exercise all J28 or any part of the jurisdiction by this Act or otherwise vested in the Court, and, for such purpose, shall be and form a Court." 8.12 It is abundantly clear from the foregoing that High Court Judges enjoy equal power, authority and jurisdiction. Each High Court Judge has the same judicial authority and one cannot overrule or review the decision of another Judge at the same level. The path for challenging and potentially overturning decisions is well established in our judicial system. If one High Court Judge were to attempt to overturn the decision of another High Court Judge in Zambia, it would lead to several significant and procedural issues as it goes against the principles of judicial hierarchy and equality of jurisdiction at High Court level. We are alive to what the Supreme Court guided in Jonathan Van Blerk's2 case that in cases involving fraud or fraudulent misrepresentation res Judicata does not come to the aid of a party. In the circumstances of this case however, it behoves us to state once again that the issue of fraud was adequately dealt with. Therefore, we consider that the Appellants are attempting to have a second bite at the cherry, and we decline to take the bait to open the matter up for re-litigation. J 29 8.13 In light of the preceding, we find that criticising the trial Judge on this point is misconceived. This ground equally lacks merit and is dismissed. 8.14 In conclusion, we find that all the six grounds of appeal are devoid of merit and we dismiss them accordingly. 8.15 In summary, we have decided as follows: 1. The Judgment under cause 2013/HN/036 was obtained openly and transparently, and is therefore unassailable. 2. The institution of cause 2023/HP/0727 was a multiplicity of actions and res judicata as the issues raised were similar to the ones raised under cause 2013/HN/036 including the allegation of fraud. 3. A High Court Judge cannot set aside a decision of another High Court Judge because they are of equal rank and jurisdiction. 9.0 COSTS 9.1 Costs follow the event to be taxed in default of agreement. ~~·· ·· ············~············~ M. M. Kondolo, SC COURT OF APPEAL JUDGE A. M. Banda-Bobo COURT OF APPEAL JUDGE ············~ ············ ·· ~~~;;~a COURT OF APPEAL JUDGE