Samson Chokwiro v Tinairi Doreen Chokwiro and Ors (2023/HP/0076) [2024] ZMHC 71 (13 May 2024)

( IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CWIL JURISDTCTION) BETWEEN: 2023/HP/0076 SAl'"VISON CHOKWIRO PLAINTIFF AN~ \)6\,.\C OF ZAAfl::Jl /~~~~, . 1 7 r -\ :_,_,:-! " :r'?~L- ·1 ""~ . TINAIRI DOREEN CHO~WIRO SHORAJCHOKWIRO \ - - - -TR_Y _ _ LOVENESS CHOKWIRO SALUZAI CHOKWIRO 1ST DEFENDANT 2ND DEFENDANT 3RD DEFENDANT 4™ DEFENDANT Before the Honourable Ms. Justice S. Chocho, in Chambers. For the Plaintiff For the 1 st to 4 th Defendants: Mr. D. Kalima, A'lessrs D Kalima And Company Mr. F. Jvlwaululca, Jvfessrs Legal Aid Board .. EXTEMPORE RULING Cases referred to: i) ANZ Gri11dlays Bank (z) Limited V Kaoma i i) Musalcanya V Attorney General iii) Amber Louise Guest Milan 'l'ri.bonic V Beatrice Mulako & Attorney General 2010/HP/0344 . . . . . UPON Hearing Counsel for the Plain tiff and Defendant. UPON Readin_g the affidavits, skeleton arguments and list of authorities filed by the parties h erein. I must state that I am grateful for th e detailed Affidavits and Skeleton Argumen ts filed. , R2 It is clear from the record that th e Pa r ties do n ot dispute t h at a matter was previously com menced by the Plaintiff h erein against on e Moses Ch okwiro in his capacity as Adm inistrator of the Estate of the Jakama D. Chokwiro (2018/HP/ F169). It is also undisputed that the Consent J u dgmen t entered under the cause 2018/HP/F 169 distrib-..ited the estate among the Plaintiff, Defendants and other beneficia ries . The said Consen t ,Judgm ent was and has not been appealed against. I note from the Plaintiff's affidavit in opposition that he believes that the bar in in dispute is sitting on the l acre awarded to him, hjs siblings and h is mother in the said Con sent Judgment. This in fact is the m ain claim of his writ and statement of clailn dated 20th January, 2023. I have considered all the authorities relied on by the parties. I am of th e considered opinion that in fact the current action is estopped byres judicata. The claims of the Plain tiff are misguided and are re-litigation of the claims already settled in cause 2018/HP/F169. It is my considered opinion that th e Plaintiffs claims ~e best suited as an application for the enforcem ent of the Consent ,Judgment under cause 20 18/!-IP/Fl69. The Plaintiff cannot commence a new case to enfor ce his righ t~ under a Consent Judgment before another Court. The law on res ju dicata is well settled in cases of ANZ GRINDLAYS BANK (Z) LIMITED V KAOMA 1 , and MUSAKANYA V ATTORNE Y GENERAL2 • ln the cas e of AMBER LOUISE GUES'l' MILAN TRIBONIC V BEATRICE MULAKO & ATTORNEY GENERAL 2010/HP/03443 Justice Dr. Patrick Matibini (as he then was) h eld inter alia. : ,: .. . ... ·. I· • ,. \ . • I R3 "In order for a plea of res judicata to succeed it must be demonstrated that a judgment should have earlier on been pronounced between the parties." In casu, the parties were duly allocated pieces of land on the estate by Consent Judgment and it follows that any dispute arising from such distribution should be settled in the first action. 1. From the forgoing I hereby order that the Defendant's application has merit. The application is duly granted. 2. The Plaintiffs action is hereby dismissed on point of law. It is an abuse of court process. 3. Costs are hereby granted to the Defendants, to be taxed in default of agreement. Dated the 13th May, 2024 frc. Jo. .:GH COURT OF ZAMBIA REPUBLIC OF ZAMBIA ·--~~~:;;;;;~~~~-~~~~~-· HIGH COURT JUDG \ 1 1 3 MAY 2024 ]~ S. CHOCHO . J P. 0. BOX 50067, LUSAKA