Muvi TV Limited and Another v Zambia Information and Communications Authority and Others (HPC 77 of 2014) [2015] ZMHC 108 (31 March 2015)

IN THE HIGH COURT FOR ZAMBIA 2014/HPC/0077

AT THE COMMERCIAL REGISTRY

HOLDEN AT LUSAKA

(Civil Jurisdiction)

BETWEEN:

MUVI TV LIMITED PLAINTIFF

STEVEN NYIRENDA INTENDED 2^ND PLAINTIFF

AND

ZAMBIA INFORMATION AND COMMUNICATIONS 1^ST DEFENDANT

TECHNOLOGY AUTHORITY

ZAMBIA NATIONAL BROADCASTING CORPORATION 2^ND DEFENDANT

ROBAM MWAPE 3^RD DEFENDANT

WEBSTER CHILUBA 4^TH DEFENDANT

BEFORE THE HON. MR JUSTICE JUSTIN CHASHI IN CHAMBERS ON THE 1^ST DAY OF APRIL, 2015

For the Plaintiff: L M Chikuta, Messrs Milner Katolo and Associates

For the 1^st Defendant: M Chisha (Mrs), Legal Officer

For the 2^nd Defendant: W Luwabelwa, Operations Secretary

For the 3^rd and 4^th Defendants: T Chali, Messrs H Ndhlovu and Company .

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R U L I N G

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Cases referred to:

1. Simbeye Enterprises Limited and Investrust Merchart Bank (Z) limited v Ibrahim Yousuf (2000) ZR 159

2. Mike Hamusonde Mweemba v Kamfwa Obote Kasongo and Zambia State Insurance Corporation Limited (2006) ZR 101.

Legislation referred to:

3. The High Court Act, Chapter 27 of The laws of Zambia.

4. The Supreme Court Practice (White Book) 1999

This is an application by the 3^rd and 4^th Defendants for joinder of Steven Nyirenda the Intended 2^nd Plaintiff.

The Application is made pursuant to Order 14 of The High Court Rules³ as read with Order 15 of The Supreme Court Practice⁴.

The application is supported by an affidavit deposed to by the 3^rd and 4^th Defendants and Skeleton arguments.

The gist of the affidavit in support is that the Intended 2^nd Plaintiff as Chief Executive Officer for the Plaintiff generated an interest in the “mwine mushi and Kasaka” episodes (hereinafter referred to as the Project) and as a result did from time to time from his own personal resources pay for production of some episodes.

That the Intended 2^nd Plaintiff was influential in the relationship between the Plaintiff and the 3^rd and 4^th Defendants and to that extent influenced the Plaintiff to offer the 3^rd and 4^th Defendants employment, although the Contract did not last long.

Further that the 3^rd and 4^th Defendants did various works with other Companies and that therefore the Intended 2^nd Plaintiff knew that the Project was the concept of the 3^rd and 4^th Defendants, which was born ten (10) years prior to the incorporation of the Plaintiff.

It is on the basis of the aforestated that the 3^rd and 4^th Defendants are contending that the Intended 2^nd Plaintiff be joined as such to these proceedings to help the Court reach justice especially in light of the contents of the 3^rd and 4^th Defendants Counter Claim.

In the Skeleton arguments, it is submitted that the dispute between the Plaintiff and the Defendants was caused by the Intended 2^nd Plaintiff and it can only be properly settled once he is made a Party to the proceedings and he will be cardinal to this matter and will assist the Court to deliver justice in the matter. Various authorities have been cited by the Applicants herein.

However, for purposes of this application, the relevant one is the case of Simbeye Enterprises Limited and investrust Merchant Bank (Z) Limited v Ibrahim Yousuf¹ where it was held inter alia that:

“it has been the practice of the Supreme Court to join any person to the appeal if the decision of the Court would affect the person or his interest. The purpose of the rule is to bring all parties to disputes relating to one subject matter before the Court at the same time so that disputes may be determined without delay, inconvenience and trials”.

In opposing the application, the Intended 2^nd Plaintiff filed an affidavit in opposition in which he asserted that he is a Shareholder and Chief Executive Officer of the Plaintiff and as such he never dealt with the 3^rd and 4^th Defendants in his own personal capacity nor has an Individual.

It is further asserted that he cannot be joined to these proceedings as a Plaintiff without his Consent especially considering that he can still come to Court and testify as a witness without necessarily being joined as a Plaintiff.

In determining this application, I have taken into consideration the affidavit evidence before this Court as well as the parties respective arguments. I have also had recourse to the pleadings on the record and in particular the 3^rd and 4^th Defendants Counter Claim as in their view, this application is mainly premised on the contents of the said Counter Claim.

Before I can go any further in my determination, I need to comment on the 3^rd and 4^th Defendants Defence and Counter Claim which was filed into Court on the 25^th day of March 2014.

A perusal of the Counter Claim in particular my view reveals that the same is couched in a manner reflecting an affidavit. In fact there is no difference between the Counter Claim and the affidavit in support of the application by the 3^rd and 4^th Defendants for joinder of the intended 2^nd Plaintiff.

A Counter Claim, in the same manner as the Statement of Claim should only state the material facts upon which one relies and then claim the relief he desires, as pleadings are to be merely concise statement of facts which the party pleading deems material to his case. it is therefore not a forum for adducing of evidence on which facts are to be proved.

The lack of skill in drafting of the Counter Claim on the part of Counsel for the 3^rd and 4^th Defendants is quite evident and I am at a loss as to why the Plaintiff did not apply to strike out the same.

Getting back to the application before this Court, it is indeed trite law that no party can be joined to any proceedings as a Plaintiff without his Consent. The Intended 2^nd Plaintiff has not consented , but has in fact gone on to oppose the application.

That despite, the provisions of Order 14 Rule 5 (1) of The High Court Rules³ clearly states as follows:

“if it shall appear to the Court or a Judge at or before the hearing of the suit that all persons who may be entailed to or claim some share of interest in, subject matter of the suit or who may likely be affected by the result have not been made parties the Court or a Judge may adjourn the hearing of the suit to a future day to be fixed by the Court or a Judge and direct that such persons shall be made either Plaintiffs or Defendants in the suit as the case may be……….”

The case of Simbeye Enterprises Limited and Investrust Merchant Bank (Z) Limited v Ibrahim Yousuf¹ cited by the 3^rd and 4^th Defendants is highly supportive of the aforestated Order.

It is also indeed within the Court’s powers to so exercise its jurisdiction in every cause or matter before it as to secure that as far as possible all matters in dispute between the parties are completely and finally determined and all duplicity or multiplicity of legal proceedings to any of the matters is avoided.

The Supreme Court summarized the effect of Order 14 Rule 5 (1) of the High Court Rules³ in the case of Mike Hamusonde Mweemba v Kamfwa Obote Kasongo and Zambia State Insurance Corporation Limited² where it held that:

“A Court can order a Joinder if it appears to the Court or a Judge that all persons who may be entitled to or claim some share of interest in the subject matter of the suit or who may be likely to be affected by the result require to be joined”.

Looking at the Cause of action herein as averred in the Statement of Claim and the Counter Claim, there are two competing parties over the alleged trade mark, that is the Plaintiff, a Corporate entity on one hand and the 3^rd and 4^th Defendants on the other hand. There is no material of fact which tends to point to the fact that the intended 2^nd Plaintiff as an individual has any interest in the alleged trade mark. Neither has the 3^rd and 4^th Defendant’s shown or demonstrated that the intended 2^nd Plaintiff is definitely bound or likely to be affected by the outcome of the proceedings in this cause or what adverse effect the non granting of the application would have on the Intended 2^nd Plaintiff.

It is clear from the affidavit evidence that the 3^rd and 4^th Defendants intend to join the Intended 2^nd Plaintiff to come and assist the Court in arriving at a just decision. That is not the purpose of Order 14 Rule 5 (1) of The High Court Rules³.

The 3^rd and 4^th Defendants intentions will be adequately covered as they will have the opportunity to cross examine the Intended 2^nd Plaintiff when he is called as the witness for the Plaintiff. If the Plaintiff does not call him as a witness, the 3^rd and 4^th Defendants would be at liberty to sub poena him.

In the view that I have taken, this is not a proper case granting the application being sought and the same is therefore accordingly dismissed with costs to the Plaintiff.

The matter will come up for a Scheduling Conference on the 23^rd day of April 2015 at 09:00 hours.

Leave to appeal is hereby granted.

Delivered at Lusaka this 1^st day of April 2015.

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Justin Chashi

HIGH COURT JUDGE