Zowee Investments Limited v Sun Line International Logistics and Ors (APPEAL NO./003/2023) [2024] ZMCA 108 (15 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO./003/2023 HOLDEN AT LUSAKA (Civil Jurisdiction ) BETWEEN: ZOWEE INVESTMENTS LIMITED AND SUN LINE INTERNATIONAL LOGISTICS LTD ZAMBIA-CHINA ECONOMIC AND TRADE ~- 1 ST RESPONDENT COOPERATION ZONE DEVELOPMENT LTD 2ND RESPONDENT Coram: Kondolo, S. C., Majula, and Banda-Bobo JJA. On 26th March, 2024 and 15th May, 2024. For the Appellant: Mr. K. Mwiche of Messrs Christopher & Frightone Legal Practitioners For the Respondent: Mr. K. Mwiinga of Messrs William Nyirenda & Company JUDGMENT Banda-Bobo, JA, delivered the Judgment of the Court. Cases referred to: 1. Hope Foundation for Women and Children v Munalula Linyati Appeal No. 25/ 2018) 2 . Mulenga & Others v Chikumbi & Others (2006) ZR 1013 3. Simbeye Enterprises Limited and Others v Yousuf (2000) ZR 1594 4. Mike Hamusonda Mweemba v Kamfwa Obote Kasongo and Zambia State Insurance Corporation Limited (2006) ZR 101 5. R v Inland Revenue Commissioners, Exparte National Federation of Self Employment and Small Businesses Limited (1983) AC 617 6. Anti-Corruption Commission v Barnet Development Corporation (2008). Z. R. 69 7. Attorney-General v Marcus Kapumpe Achiume (S. C. Z. Judgment 2 of 1983) J2 Other Legislation • The High Court Rules Chapter 27 of the Laws of Zambia • The Supreme Court Rules (White Book), 1999 Edition 1.0. INTRODUCTION 1.1 This is an appeal against the Ruling of the Honorouble Justice Mr. J. H. Mbuzi delivered on 30th October, 2022 in the High Court at Kitwe. The Appellant was the Plaintiff in the lower Court, while the 1 st and 2 nd Intended Respondents were Defendants. They will be referred to as designated in this appeal. 2.0. BACKGROUND 2.1 The brief background to this matter is that the Appellant claimed that the 1 st Respondent encroached on its piece of land, by erecting a wall fence on its property. The Appellant alleged that the 1st Respondent continued to interfere with its property by trespassing and continual construction of a wall fence. 2.2 The Appellant became aggrieved and commenced proceedings by way of Writ of summons and Statement of Claim seeking the following reliefs: i. An order that the 1 st Defendant has encroached on the Plaintifjs piece of land; ii. Damages; J3 iii. An order to dismantle and remove an illegally erected wall fence off the PlaintifFs plot; iv. An order for payment of compensation for illegal development on the piece of land to the date of Defendant's removal of illegally erected wall fence; v. An injunction restraining the Defendant whether by itself servants or agents from using or occupying or erecting any building on the remaining extent of 7.6472 Ha of Stand No.4218, Chambishi, or in any way usurping any rights over the said piece of land; vi. Interest; and vii. Costs. 2.3 On June 30, 2022, the Intended 2 nd Respondent filed summons for leave to j oin proceedings as the 2 nd Defendant under Order XIV Rule ( 5) ( 1) and Order III Rule 2 of the High Court Rules. They claimed that the property they owned was part of legal proceedings where the Appellant a lleges that the 1st Respondent encroach ed and thus had an interest in the matter. 2.4 As was expected, the Appellant opposed the application, claiming that the Intended 2nd Respondent had not demonstrated sufficient interest in Stand No . 4218 Chambishi to support the J4 joinder application. This informed the lower Court's decision, which is under challenge. 3.0. DECISION OF THE LOWER COURT 3.1 The learned Judge considered the application for j oinder. He determined that the Intended 2 nd Respondent had proved that Stand No. 4218 was part of Lot 10/ M and was on title when a subdivision was conveyed to th e 1st Respondent. The learned Judge determined that the above put the Intended 2 nd Respondent in a position to have demonstrated su fficien t interest and connection to the subject to be included in the proceedings before him. 3.2 Furthermore, he determined that the 2 nd Intended Respondent should have been included in the proceedings to avoid a multiplicity of actions. As a result, he directed Zambia China Economic Trading Corporation Development Limited to join the proceedings as the second defendant. 4.0. THE APPEAL 4.1 The Appellant, dissatisfied with the Ruling of the lower Court has now a ppealed to this Court on the following three grounds: JS 1. The Court below erred in both law and/act when it held that, the intended 2 nd Defendant has demonstrated that Stand 4218 is part of Lot 10/M, and same is on title from which a subdivision was sold to the Defendant without considering that the said title for Lot 10/M was never produced in Court; 2. The Court below erred in law and facts when it held that, invariably the decision of the Court will affect the intended 2 nd Defendant, in the absence of a Contract of Sale and that the Defendant itself has failed to file a Defence; 3. The Court below erred in law and in fact in granting joinder based on the survey diagram for Certificate of Title No.001933 (exhibit ZTl) which the intended 2 nd Defendant itself termed as incorrect in paragraph 6 of its affidavit in Reply. 5.0. ARGUMENTS IN SUPPORT 5.1 The Appellant filed Heads of Argument on 4 th May 2023 and argued all three grounds of appeal together. Counsel submitted that it was a misdirection on the part of the Court to hold that the 2 nd Respondent had demonstrated that Stand No.4218 was part of Lot 10/ M in the absence of the Certificate of Title for Lot 10 / M. J6 Counsel argued that Sub Hof Lot 10/M was a different piece of property being claimed by the Appellant because the two properties were on two different Certificates of Title that bore different Stand/Lot numbers. 5.2 It was argued that the parent Certificate of Title should have been exhibited to show where Sub H of Lot 10/M emanated from, because the site plan on page 113 of the Record of Appeal by Kalulushi Municipal Council on 12 th November, 2009, only recognized Stand No. 4218, Chambishi. He submitted that Lot 10/M and Sub Hof Lot 10 were nowhere in the local authority's site plan. 5.3 Counsel reiterated his argument that the Court below did not pay attention to the fact that the piece of land in contention by the 2nd Respondent was Sub H of Lot 10 /M of Chambishi and not Stand No. 4218 Chambishi. He submitted that the Court would not have concluded that the 2nd Respondent had sufficient interest to be joined to the matter had it scrutinized this piece of evidence. 5.4 Counsel submitted that the 2nd Respondent exhibited Certificate of Title No.0010933 66873 with Survey Diagram No . 12693 of2019 in its affidavit in opposition at page 87 of the Record of Appeal whereas in its affidavit in reply, the same Certificate of Title No. J7 0010933 66873 had survey diagram no 4678/2007 at page 128 of the Record of Appeal and labeled and initialed as incorrect. 5.5 Counsel contended that the 2nd Respondent did not have a stake in the subject matter because it had failed to demonstrate its connection to the subject matter. He referred to the cases of Hope Foundation for Women and Children v Munalula Linyatil and Mike Hamusonda Mweemba v Kamfwa Obote Kasongo and Zambia State Insurance Corporation Limited2 on the principle of joinder. Counsel argued that the Ruling should be set aside as the 2 nd Respondent failed to demonstrate that he had sufficient interest in the subject matter. 5.6 He prayed that the Court upholds all grounds of appeal and award costs to the Appellant. 6.0. ARGUMENTS IN OPPOSITION 6.1 The 2 nd Respondent filed its heads of argument on 17th March, 2023 and submitted that this was a proper case for this Court to uphold the findings and Ruling of the Court below because it was delivered upon a proper appreciation of the relevant evidence placed before it by the 2 nd Respondent, because the Ruling was one which any Court acting correctly would have also delivered. 6 .2 It was intimated that the Respondent would argue all three J8 grounds together as they all touch on the same issue, being, whether or not the lower Court granted the joinder of the 2 nd Respondent on a misapprehension of the following facts:- 1. Whether or not the Certificate of Title for Lot 10 / M was ever produced in the Court below. 2. Whether there is any proof of sale of the Subject Property from the 2 nd Respondent to the 1st Respondent 3 . Whether the lower Court granted Joinder based upon an incorrect Survey Diagram. 6.3 Regarding ground one, Counsel submitted that this appeal suggests that the lower Court erred in finding that the 2 nd Respondent had demonstrated that Stand 4218 was part of Lot 10 / M without a Certificate of Title being produced by the 2 nd Respondent for Lot 10 / M. However, that the 2 nd Respondent contends that it produced proof of ownership of Sub H of Lot 10 / M which is the relevant portion of land within which the 2 nd Respondent argues that $tand 4218 falls . 6.4 Against ground two, the 2 nd Respondent submitted that the Appellant was suggesting that the lower Court erred in finding that the determination of this matter would affect the 2 nd Respondent J9 as there was no Contract of Sale, especially, in the absence of any defence from the 1st Respondent. 6.5 Counsel for the 2nd Respondent contends that the 1st Respondent is not the party who purchased Sub H of Lot 10/ M from the 2 nd Respondent. He argued that the 2 nd Respondent sold the portion of land to a company named United Trillion Limited who should be joined to these proceedings and that the 1st Respondent should be struck from the process. However, he argued that this application could only be made if this Court upholds the findings of the lower Court which joined it to the proceedings. Further, that since the 1 st Respondent is an incorrect party with nothing to lose in this matter, the 1st Respondent has no interest to protect by responding to this process. 6.6 Under ground three, Counsel submitted that the Appellant's suggestion that the lower Court erred in grantingjoinder of the 2 nd Respondent on the basis of an incorrect survey diagram for Certificate of Title No.0010933 of facts, was incorrect. To buttress the foregoing, Counsel submitted that the 2nd Respondent has a Certificate of Title and is not relying solely on the survey diagram to assert its interest in this matter. no 6.7 Further, that whether the survey diagram is correct or incorrect is a matter for determination at trial. Counsel submitted that at this stage of the proceedings, what is cardinal is ascertaining whether the 2nd Respondent had a valid Certificate of Title for the portion of land being Sub H of Lot 10/M, in which it believes that the boundaries of the Appellant's purported Stand 4218 are overlapping. 6.8 Then Counsel went on to argue substantively on the principle of joinder. In support of his arguments, he referred to the cases of Mulenga & Others v Chikumbi & Others3 and Simbeye Enterprises Limited and Others v Yousuf4 , stating that one of the requirements when considering a party to be joined to th e proceedings, was whether a party has sufficient locus standi. He contended that it was imperative that the party being joined should demonstrate an interest in the subject matter of the dispute and that they would be affected by the outcome of the proceedings if not joined. He submitted that this test was outlined in the case of R v Inland Revenue Commissioners, Exparte National Federation of Self Employment and Small Businesses Limited5 . J11 6.9 Counsel argued that in the present case, there was sufficient evidence requiring the 2 nd Respondent to be joined to the proceedings. By way of example, Counsel submitted that the Certificate of Title for Lot 10/M need not be produced, because the 2 nd Respondent in its affidavit in support of summons for leave to join proceedings found at page 84 of the Record of appeal, referred to Sub Hof Lot 10/M Chambishi and not the parent Lot 10/M . 6.10 Additionally, Counsel argued that the 2 nd Respondent proceeded to exhibit "ZTl" a copy of the Certificate of Title No. 10933 relating to Sub Hof Lot 10/M and not the parent title as it was not relevant to these proceedings. Therefore, Counsel argued that the 2°d Respondent had demonstrated ownership of the subject property. 6.11 In further support of the foregoing, Counsel referred to the case of Anti-Corruption Commission v Barnet Development Corporation6 , where it was held that a Certificate of Title is conclusive evidence of ownership of land, by a holder of such title. He contended that in the absence of any challenge for impropriety or fraud , the exhibited Certificate of Title was conclusive proof of ownership of the property in contention. 6.12 Counsel submitted that at this stage of the proceedings, it is not J12 for a party to delve into the intricacies of the triable issues as to whether or not the said subdivision Sub H of Lot 10/ M and the purported Stand 4 218 are one and the same property. He submitted that this was an issue for determination at trial. Counsel argued that what was of importance at this stage, was that the 2 nd Respondent showed that he had demonstrated ownership of the property in contention on which the Appellant has purportedly encroached. 6 . 13 As regards the issue that the 2nd Respondent failed to exhibit proof of a contract of sale between the Respondents, he submitted that this was because the 2nd Respondent sold Sub Hof LotlO / M to a company called United Trillion Limited and not the 1 st Respondent. Further, Counsel submitted that the 1st Respondent has no interest in this matter hence the argument that the 1st Respondent be misjoined from these proceedings. 6.14 Counsel submitted that the third issue to be addressed was that of incorrect Survey diagrams as exhibited (ZTl) by the Intended 2nd Respondent at page 24 of the Record of appeal. Counsel maintained that at this stage what was important was to show that the 2nd Respondent had ownership of the land in contention J13 by way of a Certificate of Title. He contended that the 2nd Respondent had sufficient interest or locus standi to join these proceedings as the issues of whether the Appellant's purported Stand 4218 encroached Sub H of Lot 10/M is a matter reserved for trial. 6.15 Counsel prayed that this Court uphold the findings of the lower Court to join the 2 nd Respondent to these proceedings to enable the 2 nd Respondent protect its interest in the subject property as it stood to lose its entitlement if this matter was not defended by the 1 st Respondent. 7.0. HEARING 7 .1 At the hearing, counsel for the Appellant relied on the heads of arguments filed on 4 th January, 2023. In supplementing his arguments, Counsel submitted that the Appellant is the current title holder as per page 77 of the Record of Appeal. Further, that the said title is in line with the site plan as approved by the Council as appear at page 113 of the Record of Appeal. 7 .2 Counsel submitted that in order to show sufficient interest there was an application for joinder by the 2nd Respondent who exhibited title of the land in contention as per page 187 of the '- J14 Record of Appeal. However, Counsel argued that, when the Appellant opposed the application for joinder, the 2 nd Respondent in its affidavit in reply changed its position and filed another title appearing at page 127 of the Record of Appeal. 7 .3 Counsel submitted that this Court ought to note that there are two different survey diagrams and that the 2 nd Respondent claimed to have filed the other document in error. 7.4 He submitted that when rendering the Ruling, the lower Court relied on the second diagram which the 2 nd Respondent is said to have filed in error. In this regard, Counsel contended that the 2 nd Respondent failed to show that it had sufficient interest and was therefore , joined in error to the proceedings. He contended that the appeal had merit. 7.5 Mr. Mwiinga, Counsel for the 2 nd Respondent relied on the heads of argument filed on 17th March, 2023. He submitted that on page 81 of the Record of Appeal, there is a lease agreement between Sydney Simukoko relating to stand No. 4218 Chambeshi for the year 2021. Further, that on page 21 of the Record of Appeal, there is another title in the name of the Appellant relating to stand No. 4218 covering 7 .6 hectares, which they allege to have bought from Mr. Simukoko. ,_ ' ' JlS 7.6 Counsel submitted that in the same Record of Appeal on page 88 is a contract of sale to United Trillion Zambia Limited between the 2 nd Respondent and a none party. He submitted that at page 125 lines 6-8, the 2 nd Respondent in its affidavit alleges that Stand 4218 belonged to the Appellant. He contended that this land falls within the parameters of their land. 7. 7 Counsel contended that the question is whether the Respondent adduced evidence of sufficient interest for joinder, and that the answer to the foregoing was in the affirmative. Counsel submitted that the 2 nd Respondent agreed with the Ruling rendered by the Court below on joinder. He submitted that this appeal has no merit. 8.0. ANALYSIS AND DECISION OF THIS COURT 8.1 We have carefully perused the Record of Appeal, the impugned Ruling, the authorities and submissions by the parties. 8.2 Since the grounds of appeal are related, we intend to deal with them together. J16 8.3 In this appeal, the pnmary question is whether the 2 nd Respondent should have been joined to the proceedings by the lower Court. 8.4 In casu, the Appellant contends that the lower Court erred when it joined the 2 nd Respondent to the proceedings on account that the 2n d Respondent had demonstrated that he had sufficient interest and locus standi. 8 .5 It is trite that a party can be joined to proceedings under Order 14 Rule 5 of the High Court Rules, and Order 15/6/8 of the Supreme Court Rules, 1999 edition both which a llow for such an application. Order 14 Rule 5 of the High Court Rules specifies that: "5. (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 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 J17 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: 8.6 Further, Order 15/6/8 of the Rules of the Supreme Court, 1999 edition on the other hand provides that: "Generally, in common law and Chancery matters a plaintiff who conceives that he has a cause of action against a defendant is entitled to pursue his remedy against that defendant alone. He cannot be compelled to proceed against other persons whom he has no desire to sue. Under this rule, however, a person who is not a party may be added as defendant against the wishes of the plaintiff either on the application of the defendant or on his own intervention, or in rare cases by the Court of its own motion. The jurisdiction of the court under this rule is entirely discretionary". 'f I I f • J18 8 .7 The ration ale for joinder of interested parties is explained in Order 15/6/8 of the rules of the Supreme Court, 1999 edition as : "(a) to prevent multiplicity of actions and to enable the Court to determine disputes between all parties to them in one action, and (b) to prevent the same or substantially the same questions or issues being tried twice with possibly different results, these objects are achieved by enabling a person not a party to be joined as a third party; under para (2) of this rule these objects are achieved by enabling a person not a party to be added as a party. One important difference is that a nonparty can himself apply under para (2) of the rule to be added as a party, but he cannot apply under 0.16, r . 1 , to be joined as a third party. 8.8 In th e Ruling at p age 17 of th e Record of appeal, th e learn ed J u dge in th e Cou rt below stated t h at: "The foregoing clearly indicates that the Intended 2 nd Defendant has demonstrated that Stand 4218 is part of Lot 10/M, and the same is on title from which a subdivision was sold to the Defendant. This puts the Intended 2 nd Defendant in a position of having provided sufficient interest and t " , J19 connection in the matter to be joined to the proceedings. Invariably the decision of the Court will affect it, considering its alleged transaction with the Defendant. It is therefore imperative that in order to ensure that all matters in controversy maybe effectually and completely determined and adjudicated upon thereby avoiding further litigation, the Intended 2 nd Defendant should be joined to these proceedings." 8 . 9 The aforementioned excerpt of the Ruling makes it quite evident, in our opinion , that the learned Judge in the court below based his Order for joinder on the p rin ciples of preven t ing a multiplicity of actions and making sure that everyone who might be impac t e d by the final outcome is joined appropriately. 8.10 Furth er more, it is impossible to criticize the learned Judge's conclusions wh en h e stated that the Intended 2nd Respondent had a su fficient con nection to and interest in the case at han d. In our view, th is is clear from the Certificate of Title presented on page 127 of the Record of Appeal. We therefore, find that the learned J udge cannot be fau lted for fin ding that the Intended 2nd Respondent had sufficient interest and locus standi. t ._' , • J20 8.12 Accordingly, we are of the firm belief that exploring every additional issue presented by the Appellant in this appeal may amount to delving into the issues that s h ould be decided at trial. We deem that a ll grounds of appeal lack merit. 9 .0. CONCLUSION 9 . 1 In conclusion, this appeal fails and is dismissed for lack of merit. Costs are for th e 2nd Respondent to be taxed in default of agreement. M. M. KONDOLO SC COURT OF APPEAL JUDGE B. M. M JULA COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE