Teichmann Zambia Limited v Mumana Hotels Limited and 2 Ors (APPEAL 209/2019) [2020] ZMCA 204 (14 December 2020)

, IN THE COURT OF APPEAL OF ZAMBIA APPEAL 209/2019 HOLDEN AT NDOLA (Civil J urisdiction) BETWEEN: AND APPELLANT MUMANA HOTELS LIMITED 1 ST RESPONDENT MUMANA PLEASURE RESORT LIMITED 2ND RESPONDENT PUMA ENERGY ZAMBIA PLC 3RD RESPONDENT CORAM: Chisanga JP, Mulongoti and Siavwapa, JJA On 11th November and 14th December, 2020 For the appellant: Mr. C. Sianondo of Malambo and Company For the ]s t & 2nd respondents: No Appearance For the 3 rd respondent: No Appearance JUDGMENT MULONGOTI, JA, delivered the Judgment of the Court. cases referred to: 1. Richard Mofya v Staylon Employment and Investme nt Ltd & Eco Bank Limited (SCZ) Judgment No. 37 of 2014 2 . John Chisata v the Attorney Ge neral (1990- 1992) ZR 154 3. Becmonics Limited v AON Zambia Limited and Goldman Insurance Limited SCZ Judgment No. 9 of 2012 4. Ball v Western Planni ng Authority (1966) ZR 1 5 . Bryne v Kanweka (1967) ZR 82 6. Kariba North Bank Limited v Zambia State Insurance Corporation Limited (1980) ZR 94 7. Anderson Kambela Mazoka and others v Levy Patrick Mwanawasa and others (2005) ZR 138 8. Nkhata and 4 others v Attorney General (1966) ZR 124 9. Access Bank v Group Five /ZCON Business Park Joint Venture SCZ/8/52/2O14 10. Alick Sakala v Mangani Phiri (suing as administrator of Garden North Baptist Church) (SCZ Selected Judgment No. 36 of 2018) 11. Kafamuyeke Mukelebai v Esther Nalwamba, Commissioner of Lands and Attorney General (2013) ZR Vol. 2 p .312 12. Africa Banking Corporation v Mubende Country Lodges Limited Appeal No. 116 of 2016 13. JCN Holdings Limited v Development Bank of Zambia (2013) Vol. 3 p. 14. Antonio Ventriglia and others v Finsbury Investments Limited SCZ Appeal No. 2 of 2019. 15. Indeni Petroleum Refinery Co. Limited v Kafco Oil Limited and others SCZ Selected Judgment No. 29 of 2017 16. Silas Ngowani and 6 others v Flamingo Farm Limited SCZ Selected Judgment No. 5 of 2019 Legis lation a n d works referred to : 1. The Constitution Cap. 1 of the Laws of Zambia 2. The Rules of the Supreme Court of England, 1999 edition (RSC) 3. The High Court Rules, Cap. 27 of the Laws of Zambia 4. The Companies Act Cap. 388 of the Laws of Zambia 5 . The Companies Act No. 10 of 2017 6. Mayson French and Ryan on Company Law, 21 st edition, 2004-2005 7 . Halsbury's Laws of England, 4 th edition (reissue) Vol. 7(1) J2 1.0. Introduction 1. 1 This is an appeal against the Ruling of his Lordship Chenda, J, delivered on 9 th September, 2019, dismissing the appellant's case in the High Court on a point of law. The Ruling had a terminal effect on the appellant's action for an order for specific performance and damages arising from an alleged breach of a contract of sale of land. 1.2 The appeal deals with procedural issues concerning the application of Summary Procedure under Order 14A of the Rules of the Supreme Court of England, 1999 edition (RSC) and the effect of a change of name of a company vis a vie locus standi. 2.0 Background 2.1 On 31 st August, 2011 a contract of sale relating to a piece of land forming part of property known as Stand No. 10446, Lusaka measuring approximately 2,200 hectares (the property) was executed between the 1s t respondent Mumana Hotels Limited as vendor and the appellant Teichmann Zambia Limited as purchaser. The purchase price was US$1,000 ,000 .00. The Contract contained a clause whereby the 1s t respondent, undertook to give the appellant the right J3 of first refusal to purchase or develop the neighbouring vacant land or any part of the remaining extent of the property, either independently or with the 1st respondent, as a joint venture. 2.2 Sometime in 2014, the appellant Teichmann Zambia Limited claimed that it came to its attention that the 1st respondent had breached the clause on giving them the right of first refusal. The appellant claimed that the 1st respondent offered the land for sale to the 2 nd respondent, Mumana Pleasure Resort, who had even commenced construction works on the property. 2.3 The 3 rd respondent, Puma Energy Zambia Plc, appears on the scene at a later stage as a succeeding assignee of the property from the 2 nd respondent, Mumana Pleasure Resort Limited. 2.4 Aggrieved by this state of affairs, the appellant sued the respondents in the High Court, commercial list, on 22 nd May, 2014 for an order for specific performance and damages . 2.5 The respondents contested the action and made a series of preliminary objections as regards the parties 1 capacity arising from issues of privity of contract. Chishimba, J, as she then was, rendered a Ruling on 12th August, 2014. She found , inter J4 .. ' alia, that there was privity of contract between the appellant and the 1st respondent and then ordered misjoinder of the 2 nd and 3rd respondents. The appellant appealed to the Supreme Court of Zambia against that Ruling. On 2 nd March, 2018, the Supreme Court reversed the Ruling of the High Court as regards misjoinder and ordered that the 2 nd and 3rd respondents be re-joined to the proceedings. 2. 6 When the matter reverted to the High Court, the appellant filed its amended statement of claim on 10th June, 2019. On 12th July, 2019, the respondents entered conditional appearance and raised issue with the appellant's locus standi alleging that the appellant was not in existence at the date of the Contract of Sale and as such had no capacity to enter into the Contract. The application was struck out for non attendance and the 1st and 3 rd respondents proceeded to file their respective defe nces . 2. 7 However, on 27th August, 2019, the 1st respondent again filed a Notice to Raise Preliminary Issues under Order 14A, Rules of the Supreme Court (RSC) still questioning the existence of the appellant at the time of the contract. At the hearing the appellant sought to challenge the propriety of the Notice JS alleging that the r espondents had not m et the thre shold for invoking Order 14A. 3. 0 Consideration of the evidence and Decision of the lower court 3 . 1 After considering t h e Notice to Raise Preliminary Issu es, t h e court b elow m a d e sever a l findings and conclusions including, inter alia, the following: 3 . 1.1 "A challenge on the merits operates as a waiver of alleged irregularity of proceedings. The appellant, therefore, waived the right to raise the issue of the alleged failure to meet the threshold requirements for invoking Order 14A and to frame an appropriate question for determination, which irregularity cannot now be raised at this late stage. 3. 1.2 The entity that was the contracting purchaser in the Contract of Sale was not the appellant herein but Teichmann Africa Limited (then Teichmann Zambia Limited); 3.1.3 Seeing as the appellant was not party to the Contract of Sale when created, it has no locus standi to bring and sustain this action on the backbone of the Contract of Sale; 3 .1.4 The alleged cause of action instead vests in Teichmann Africa Limited (then Teichmann Zambia Limited); 3.1.5 The appellant's later change of name to Teichmann Zambia Limited did not make the appellant privy to the Contract of Sale; 3. 1.6 That the change or swapping of names did not operate as assignment of rights under the Contract of Sale to the appellant; 3 . 1.7 There having been no alternative precautionary prayer by the appellant for joinder (of the entity with locus to sue on the contract of sale), I am left with no option but to uphold the terminal motion. " 3 .2 The a ppellant's action wa s accordingly dis m iss ed . J6 4. 0 The Appeal 4 .1 Aggrieved by the ou tcom e, the appellants a ppealed to this Court on seven gr ounds a s follows : 11 l . The court below erred both in law and in fact when it failed to find that there was Teichmann Zambia Limited registered as both a foreign and local company; 2. The court erred both in law and in fact when it held that Teichmann Zambia Limited had no locus standi despite the Company having been a contracting party to the contract and more so after finding that a change of name does not render defective the legal proceedings commenced in its former name; 3. The court below erred when it held that Teichmann Africa Limited is the company with locus standi despite not appearing on the contract; 4. The court erred in law in seeking to apply principles of assignment which had no bearing in the matter; 5. The court erred both in law and in fact in determining the matter on a point of law when there was serious contention on the facts in issue; 6 . The court erred both in law and in fact when it delved into issues which were not before the court when the issue before the court was whether the plaintiff existed at the time of the contract; and 7. In the alternative, the court erred in law and in fact in dismissing the entire action when no action can be defeated by misjoinder." 5.0 The Arguments 5. 1 To s upport the app eal, th e a ppellant's counsel filed h ead s of argumen t on 26 th November , 20 19 . J7 I . 5.2 Counsel proposed to argue the grounds of appeal in clusters of related issues. 5.3 As regards grounds one, two and three, it was submitted that as at 23r d August, 2011, there were two companies. The foreign company Teichmann Zambia Limited with registration number 220070001314 (referred to as 1314) and the local company with registration number 120100087634 (referred to as 87634). The companies went through change of names. First, on 15th February, 2011, following a Board resolution, Teichmann Zambia Limited changed its name to Teichmann Africa Limited. Second, on 8 th February, 2012, the Board resolved that Teichmann Africa should revert to its original name of Teichmann Zambia Limited. Thus, at the time of the contract, the company was Teichmann Zambia Limited. 5.4 The two companies existed under the same name, being Teichmann Zambia Limited. However, the contracting party was the local entity. Counsel went on to argue that a change of name did not affect the company's rights and obligations as was outlined in section 40(7) Cap 388 of the Laws of Zambia which was applicable at the time. J8 ' . 5.5 As such the court below fell in error when it dismissed the entire action on the ground that the appellant was not the proper party and, therefore, had no locus standi because its finding was based on a misapprehension of facts. Consequently, this Court should allow grounds one, two and three of the appeal. 5.6 Concerning grounds four and six, it was submitted that the issue which was before the Court was whether the appellant existed at the time of the contract or not, but the court went on to discuss principles of assignment. This was wrong because the court's jurisdiction only went as far as the application before it. To support this argument, counsel relied on the Supreme Court decision in the case of Richard Mofya v Stayton Employment and Investment Ltd & Eco Bank Limited1 where that Court upheld an appeal on the ground that the lower court erred when it made an order setting aside a writ of summons and statement of claim when the application before it was that of an injunction. 5.7 Under ground five, on the question of whether the matter was fit for d etermination on a point of law under Order 14A, RSC, it was counsel's argument that the court's a pproach of J9 employing summary procedure was incorrect because the determination of the matter required a proper analysis of the evidence on record. On that score, we were referred to Order 14A/2/8 and the case of John Chisata v the Attorney General2 where the Supreme Court cautioned trial judges to allow contentious issues to go to trial so that the issues may be properly resolved. 5 .8 The gist of counsel's submission on ground seven was that after finding that the appellant was not a contracting party, the court erred by dismissing the action contrary to Order XIV rule 5(1)(3) of the High Court Rules which stipulates that "no suit shall be defeated by reason of non-joinder or misjoinder of parties." 5. 9 In response, the 1st and 2 nd respondents' counsel filed heads of argument dated 22nd April, 2020. 5.10 In relation to ground one, it was argued that the court below did not err by failing to find that there was Teichmann Zambia which was registered as both a foreign and local company. Such a finding could not be made as it was not pleaded. The cases of Becmonics Limited v AON Zambia Limited and Goldman Insurance Limited3 , Ball v Western Planning Authority4 and Bryne v Kanweka5 were cited as a uthority to the JlO effect that parties are bound by their pleadings and evidence outside pleadings would ordinarily be excluded. We were also referred to the cases of Kariba North Bank Limited v Zambia State Insurance Corporation Limited6 and Anderson Kambela Mazoka and others v Levy Patrick Mwanawasa and others7 on the function of pleadings. Further reference was made to Order VI rule 1 of the High Court Rules, Cap. 27 of the Laws of Zambia. 5.11 It was further submitted that the appellant only made claim to being a foreign company registered and incorporated in Zambia on 17th April 2007. Its country of incorporation being Jersey, Channel Islands. The appellant is solely a foreign entity and separate from the local entity Teichmann Africa which was incorporated in Zambia. The printouts from PACRA reveal that the said Teichmann Africa Limited 1s a local company incorporated on 15th October, 2010. 5.12 In response to grounds two and three, it was submitted tha t the court below was on firm ground in holding that the appellant had no locus standi. This is because as at the date of the contract, namely, 31 st August, 2011, the appellant's name was Teichmann Africa Limited and going by section 11 of the Companies Act, Cap 388 of the Laws of Zambia it could only Jll l ' ·' the case of Nkhata and 4 others v Attorney General8 as to when an appellate court can interfere with findings of a lower court. 5.16 In respect of grounds four and six, it was counsel's submission that the lower court could not be faulted for addressing its mind to assignment of rights in ascertaining whether the appellant was the contracting party. The appellant was operating under the name of Teichmann Africa Limited and not Teichmann Zambia Limited. Despite its subsequent change of name reverting to Teichmann Zambia Limited, it could not assert any rights on the contract. 5.17 In response to ground five, it was submitted that the court below addressed the propriety of the Notice of Motion to Raise Preliminary Issues and his reasoning could not be faulted . This is because the appellant filed an affidavit in opposition and skeleton arguments against the Notice without questioning the propriety of t h e Notice. The irregularity issue only arose at the hearing on 4 th September, 2019 . Hence , the appellant waived its right to challenge the propriety of the Notice. 5.18 Relying on the case of Access Bank v Group Five /ZCON Business Park Joint Venture9 , counsel added that although Article J13 ' I 118(2)(e) of the Constitution Cap. 1 of the Laws of Zambia instructs courts to administer justice without undue regard to procedural technicalities, it does not mean the Constitution ousts litigants' obligations to comply with procedural imperatives as they s eek justice from courts. 5 . 19 Regarding ground seven, the 3 rd respondent's counsel argued that the assertion that misjoinder does not defeat an action does not have a general application to all cases. In the present case, it cannot be said that the Judgment cannot be given effect without the a ppellant because it is not a contracting party. Thus, there is no legal requirement to keep it as a party. In addition, the appellant has not made any application for non-joinder or substitution of parties. If the Court was inclined to add Teichmann Africa Limited as a party, then the appellant should meet the costs here and below. 5.20 We were urged to dismiss the appeal in its entirety with costs. 5 .21 The appellant's counsel filed Heads of Argument in Reply on 5 th November , 2020. 5.2 2 It was submitted that the chronology of events reveals that between 15th February, 2011 and 24th February, 2012, the J14 foreign company existed under registration ending with numbers 1314 and by the name Teichmann Africa Limited. The Contract d ated 31 st August, 2011 was signed by the local company which existed as Teichmann Zambia Limited at the time. The foreign company Teichmann Africa Limited was not a party to t h e contract. 5.23 It was submitted that the fact that the contracting party changed its name cannot be the reason to defeat an a ction before court as stipulated in section 40(7) of the Companies Act, Cap. 388 of the Laws of Zambia. The change of name does not require assignmen t of rights as the legal status of the company remains t h e same. 5 .24 Concerning the application of Order 14A RSC , it was counsel's s ubmission that the Supreme Court has guided on the procedure. In that regard, counsel referred us to the ca se of Alick Sakala v Mangani Phiri (suing as administrator of Garden North Baptist Church) 10 where the Supreme Court held, inter a lia, that: "it is undeniable that the Court has power under Order 14A rule 1 of the White Book, either upon application by a party or of its own motion, to determine any question of law or construction of a document arising in any cause or matter at any stage of the proceedings where it appears to the Court that (a) such question is suitable for determination without J15 ! J a full trial of the action, and (b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim, or issue therein. However, this power is not open ended. The editorial note at paragraph 14A/2/7, at page 202 of the White Book is very instructive. It reads as follows: "The application may be made at any time after the defendant had given notice of intention to defend and before the full trial of the action has begun; From this passage, it is very clear that the court below ought not to have entertained the preliminary issue after the trial of the action had begun and in the course of cross examination. We wish to take this opportunity to draw the attention of trial Judges and all legal practitioners to this very important factor." 5.25 Flowing from this, it was submitted that in order to utilise Order 14A RSC, one has to give Notice of Intention to Defend and more so that it should be made before the trial begins. The Notice of Intention is not a conditional appearance. To buttress this point, counsel cited the cases of Kafamuyeke Mukelebai v Esther Nalwamba, Commissioner of Lands and Attorney General11 and African Banking Corporation Zambia v Mubende Country Lodge Limited12 where the Court opined that the giving of notice of intention to defend is a prerequisite to making an application under Order 14A RSC by filing a Memorandum of Appearance and Defence. J16 5.26 Since the 1st respondent in raising its preliminary objection only filed a conditional Memorandum of Appearance and not a Memorandum of Appearance and Defence, the lower court lacked jurisdiction to entertain the application. The irregularity having been flagged, the lower court was bound to look at it and discount the same because the irregularity went to the jurisdiction of the court. Hence, the decision of the court below was a nullity. To support that assertion, counsel placed reliance on the cases of JCN Holdings Limited v Development Bank of Zambia13 and Antonio Ventriglia and others v Finsbury Investments Limited 1 . 5.27 As regards Order XIV rule 5 (3) of the High Court Rules, it was argued that it does not make a distinction as suggested by the 3 rd respondent. Counsel submitted that unlike dismissing the whole case, the court could have added the relevant party. Dismissing the entire action was, therefore, a misdirection. 6. 0 The Hearing 6.1 At the hearing of the appeal, the appellant was represented by Mr. Sianondo. There were no appearances made for any of the respondents. Our records showed that all the J17 respondents' advocates on Record were served with the Cause List indicating the place, date and time of hearing. Having been satisfied that all the respondents were served with the Cause list, we proceeded to hear the appeal. 6.2 The appellant's counsel placed reliance on the appellant's Heads of Argument dated 26 th November, 2019 and the appellant's Heads of Argument in Reply dated 5th November, 2020 which he augmented, viva voce. 6.3 He submitted that the foreign company (appellant) changed its name to Teichmann Africa per board resolution at page 501. Then the resolution at page 503 (of the record of appeal volume 2), dated 24th February, 2012 shows that (1) effective 8th February, 2012 the foreign company changed its name back to its original name Teichmann Zambia Limited, (2) the local company Teichmann Zambia with incorporation number ending 87634 changed its name to Teichmann Africa Limited. According to counsel, the local company only changed its name to Teichmann Africa in 2012. Therefore at time of the contract in 2011 it was known as Teichmann (Zambia) Limited when it was incorporated in 2010 and only changed its name to Teichmann Africa in 2012. Jl8 6.4 He highlighted that the change of name does not affect the legal status of the company, which point the lower court appreciated save for the misdirection of designating the foreign company, Teichmann Africa Limited, as the contracting party and as such the company with locus standi. 6.5 Counsel added that the Court should not have dismissed the entire case because there was a competent party at the time which should have been substituted. 7.0 Issues on Appeal 7 .1 After careful consideration of the grounds of appeal and the arguments advanced by counsel, we are of the considered view that the issues that arise for determination are: 7 .1.1 whether the lower court correctly dealt with the case as required by the Summary Procedure under Order 14A, RSC; and 7 .1.2 whether the appellant was the proper party to the Contract of Sale and, therefore, had locus standi to sue on the Contract of Sale. 8.0 Considerations and Decision of this court 8.1 In resolving the issues raised in this Appeal, we shall address ground five first and later deal with grounds one, two, three, four, six and seven together as they are interrelated. 8.2 The first issue concerns the application of Order 14A RSC and effectively addresses ground five of the appeal. Jl9 8.3 We note that at the hearing of the Notice of Motion to Raise Preliminary Issues in the court below, the appellant challenged the propriety of invoking Order 14A, RSC. Our understanding of the application of Order 14A, RSC is that the provision, particularly, under Order 14A/2/3 RSC sets out the requirements for invoking the procedure as follows: a. The defendant must have given notice of intention to defend; b. The question of the law or construction must be suitable for determination without the full trial of the action; c. Such cause will be final as to the entire cause or matter or any claim or issue; and d. The parties had an opportunity of being heard on a question of law or have consented to an order or judgment being made on such determination. 8.4 It is well settled in the context of our High Court Rules, that a notice of intention to defend is the filing of a memorandum of appearance with a defence. And that, the filing of a memorandum of appearance and defence is a prerequisite to invoking Order 14A, RSC. See Africa Banking Corporation Zambia v Mubende Country Lodge Limited12 . 8.5 After careful perusal of the Record, it is clear to us that after the matter reverted to the High Court from the Supreme Court, the appellant filed the Amended Writ of Summons and Statement of Claim on 10th June, 2019. J20 8.6 The 1st respondent filed a defence at a later stage but before the Notice to Raise Preliminary Issues was filed. The 3rd respondent on the other hand filed its Memorandum of Appearance and Defence earlier on, on 24th June, 2014. In our view, since the respondents filed their defences, this would suffice as a Notice of Intention to defend on their part for purposes of Order 14A, RSC, the circumstances of the case being clearly distinguishable from those obtaining in Africa Banking Corporation v Mubende Country Lodges Limited12 where the Supreme Court was categorical at page J. 34 that "a conditional appearance can never be extended or over stretched to constitute a notice of intention to defend in the context of an application under Order 14A, RSC ... " 8. 7 In addition, we are of the considered view that the other conditions required to meet the threshold for invoking Order 14A, RSC were met. A quick perusal of the Notice to Raise Preliminary Issues and the objections to it reveal that the issue that was before the court below was a question of law that was suitable for determination without the full trial of the action and the parties were most certainly heard on the Notice. We are fortified by the· J21 case of Indeni Petroleum Refinery Co. Limited v Kafco Oil Limited and others 15 , where the Supreme Court illuminated that an issue was fit for determination under Order 14A, RSC because "the question for determination was also suitable for determination without a trial or hearing because its determination hinged on the interpretation of the law, practice and procedure." 8.8 Consequently, we find that the circumstances obtaining in the court below met the threshold for invoking Order 14A RSC. Therefore, the court below cannot be faulted for having entertained the preliminary objection under Order 14A RSC. On that score, ground five lacks merit and is accordingly dismissed. 8.9 We now turn to resolve the second issue for determination in this appeal. The main thrust of the appellant's arguments pertaining to the second issue is that the appellant was the proper party with locus standi to sue on the Contract of Sale despite the change of name. The respondents contend otherwise, arguing that the proper party to the contract who has locus standi to sue on it is Teichmann Africa Limited. J22 8.10 The facts as gleaned from the Record are clear that there were two companies existing at the time of the Contract of Sale and at the time of commencement of the action in the High Court. A foreign and a local company. At page 486 of the record of appeal volume 2 it is clear that the foreign company Teichmann Zambia Limited was initially incorporated in the Jersey Channel Islands on 13th July, 2006. It was subsequently registered at PACRA in Zambia on 17th April, 2007 with a registration number 1314. On 15th February, 2011, the foreign entity changed its name from Teichmann Zambia Limited to Teichmann Africa Limited with effect from 20 th September, 2010. 8.11 Meanwhile, the local company, presently known as Teichmann Africa Limited, was incorporated in Zambia on 15th October, 2010 under incorporation number 87634. According to the resolution dated 24th February, 2012 (on page 503) the board resolved that: "(1) Teichmann Africa Limited, registered in Zambia as a foreign registered company number 1314 should change to its original name of Teichmann Zambia Limited with effect from gth February 2012 (2) Teichmann Zambia incorporated in Zambia incorporation number 87634 should change its name to Teichmann Africa J23 Limited with immediate effect (3) The changes should be submitted to PACRA immediately and the records updated". 8.12 This resolution was filed at PACRA as signified by its stamp dated 24th February, 2012. As such, as at the date of the Contract being 31 st August, 2011, the local company 87634 went by the name Teichmann Zambia Limited and only changed to Teichmann Africa in 2012. But, as at the date of the suit, the local company went by the name Teichmann Africa Limited. 8.13 The Record also shows that the initial Writ of Summons and Statement of claim dated 22 nd May, 2014 filed by the appellant in the High Court cite Teichmann Zambia Limited as the plaintiff and describes the plaintiff as a company incorporated in Zambia under the Companies Act Cap. 388 of the Laws of Zambia and having its registered office at Lusaka. Likewise, the Amended Writ of Summons and Statement of Claim dated 10th June, 2019 cite Teichmann Zambia Limited, a company incorporated in Zambia and having its registered office at Lusaka, as the plaintiff. 8.14 Consequently, from as far back as 2014, it was clear that the intended party was the local company bearing number J24 87634 which at the date of the Contract existed as Teichmann Zambia Limited. This is the same name that appears on the Contract of Sale in question. However, the account of events outlined above shows that the local company which was the intended plaintiff existed with the name Teichmann Africa Limited as at 22nd May, 2014 when the action was commenced in the High Court and as at 10th June, 2019 when the amended pleadings were filed in the High Court. 8.15 Thus, the appellant as the local company, was initially incorporated as Teichmann, Zambia in 2010 and changed its name to Teichmann Africa in 2012. It was, therefore, the proper party to sue the respondents it could have commenced the proceedings using the current name Teichmann Africa Limited and not Teichmann Zambia Limited. Section 40(7) of the Companies Act Cap 388 (then in force) provided that: "a change of name by a company shall not affect any rights or obligations of the company or render defective any legal proceedings that could have been continued or commenced against it by its former name, and any such legal proceedings may be continued or commenced against it by the new name". J25 8.16 Thus, despite the finding that the appellant was wrongly cited, as it underwent a name change, its rights and obligations remained the same. The learned authors Mayson, French and Ryan on Company Law in their 21 st edition state at page 87 that: "the company with the altered name and altered certificate of incorporation is still the company it was under its previous name; the company is not 'formed' with the new name at the time of issuing the new certificate; it was formed when it was first registered. See also: Oshkosh B'gosh Inc. v Dan Marbel Inc Ltd [1989] BCLC 507 ... " 8.17 Similarly, the learned authors ofHalsbury's Laws of England, 4 th edition (reissue) Vol. 7(1) at paragraph 156 opine that: "the change of name does not affect any rights or obligations of the company or render defective any legal proceedings by or against it, and any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name." 8.18 The foregoing views have been codified in our jurisdiction as evident in section 40(7) of the Companies Act, Cap 388 of the Laws of Zambia as aforestated, it follows that although the appellant was wrongly cited, the change of name did not affect its substantive rights and obligations. Therefore, the court below erred when it held that Teichmann Zambia had no locus standi. It is apparent the court below overlooked the J26 fact that there were two companies with the same names and both underwent name changes. 8.19 We note that the court below ruled that it was constrained to dismiss the entire action because there was no alternative precautionary prayer for non-joinder or substitution of parties before it. 8.20 We are of the firm view that the court below could have exercised its inherent jurisdiction and substituted Teichmann Zambia Limited with Teichmann Africa Limited as plaintiff and proceeded to hear the case on the merits and in line with section 40(7) the case have continued in its former name. The Supreme Court in Silas Ngowani and 6 others v Flamingo Farm Limited16 elucidated that the joinder of parties should first and foremost be the prerogative of the parties to the dispute and not for the court. However, in the same judgment, it was made clear at page J.27 to J.28 that: "the Authorities cited by counsel for the appellants on the power of the court to join a party to proceedings either suo motu or on an application by a party, are all properly located. .. A judge may order joinder of a party if this will advance the course of justice in the matter. It is also correct to state, as does the appellant's counsel, that failure to join a party does not defeat an action." J27 8.21 In view of the foregoing, even if there was no application for substitution or non-joinder of a party, the court had inherent power to substitute Teichmann Africa Limited as the plaintiff. 8.22 We further opine that dismissal of the action was not the best course of action for the court below to take, in the circumstances, especially having found that there was another legal entity existing with the same name as the appellant which could have maintained the action. 8.23 Since the suing entity was the same throughout, there was no need for the court below to stretch its analysis to even consider if there was an assignment of rights. In any case, the issue was not pleaded as ably argued by counsel. Despite finding that the appellant was cited wrongly, the court below should have exercised its inherent power to substitute Teichmann Africa Limited as the plaintiff instead of dismissing the entire case. Our finding on the second issue effectively resolves grounds one, two, three, four, six and seven of the appeal, which are allowed. J28 9.0 Conclusion 9.1 The net result is that the appeal substantially succeeds save for ground five. We accordingly set aside the Ruling of the court below. 9.2 For convenience, we order that the appellant's former name Teichmann Zambia Limited be substituted with its present name Teichmann Africa Limited, as the plaintiff. 9.3 The matter is accordingly remitted to the High Court for trial before the same judge. 9.4 Given the circumstances, we order that costs shall abide the outcome of the case in the court below. F. M.~SANGA JUDGE PRESIDENT COURT OF APPEAL JUDGE M. J. SIA APA COURT OF APPEAL JUDGE J29