affidavit in support of application

The Brief facts leading to this appeal are that Willard Solomon ' Nthanga and 52 others commenced an action against the, respondent in the High Court on 28th November, 2000. The learned Deputy Registrar then ordered the joinder of 201 more plaintiffs and the number of plaintiffs increased from 53 to 254. On 8th September, 2003, the learned Judge also granted an application allowing the plaintiffs to amend the writ of summons to add 81 more individuals as plaintiffs, which further increased the number of plaintiffs to 334. The events that followed are at the centre of the dispute in this appeal. It is not clear whether the plaintiffs made a subsequent application to join 68 more individuals as plaintiffs. However, the record shows that on 10th February, 2005, Counsel for the plaintiffs filed an application to amend the writ of summons to add 68 more plaintiffs.

The application was supported by an affidavit in which Mr. Mukande SC deposed that he had received further instructions that a number of former employees were not included on the amended writ of summons which the plaintiffs had filed earlier. It should be noted that there is nothing on record to show that this application was heard or that it was granted by the Court. The matter proceeded to trial and the 68 individuals participated in the proceedings as if they had been formally joined. The number of plaintiffs on record also increased from 334 to 402. After trial, the High Court found in favour of the plaintiffs.

The plaintiffs were again successful when the matter went on appeal to the Supreme Court and it was referred to the learned Deputy Registrar for assessment. At assessment, a preliminary issue was raised by State Counsel Silwamba on behalf of the appellant that the 68 individuals were wrongly before Court because there was no Court order joining them to the proceedings as plaintiffs. The learned Deputy Registrar heard the preliminary objection and dismissed it. He found that the plaintiffs filed an application for leave to amend the writ of summons, which was intended to achieve the joinder of the 68 individuals to the proceedings. He noted that although the application was filed, there was no order granting the application but the 68 individuals were subsequently treated as part of the proceedings.

The learned Deputy Registrar found that the erroneous joinder 1 of the 68 individuals was a pure procedural failure, which could not be wholly blamed on them. He took the view that striking out the 68 individuals as plaintiffs would entail a total failure or defeat of the suit, which would be at odds with Order 14 rule 5(3) of the High Court Rules which provides that no suit shall be defeated by reason of non-joinder or misjoinder of parties. The appellants appealed to a Judge of the High Court against the decision of the Deputy Registrar. The learned Judge found that while the application to join the 68 individuals was made, there was no Court order granting the application. He took the view that the learned Deputy Registrar's decision which was based on Order 14 rule 5(3) of the High Court Rules was invalid in that striking out the 68 individuals would not have resulted in the defeat of the suit as assessment would still have proceeded with the valid parties to the suit. In his view, the fact that the 68 individuals took part in the prosecution of their claim both in the High Court and the Supreme Court was sufficient proof that their application was made before Judgment.

He was satisfied that this was a proper case in which to exercise his inherent jurisdiction to formalize the addition of the 68 persons as Plaintiffs. He therefore dismissed the appellant's appeal and ordered that the 68 individuals be formally deemed to have been added to the suit with effect from a date which was 21 days after they filed their application to amend the writ of summons. It is against the decision by the learned Judge that the appellant appealed to this Court advancing two grounds of appeal expressed in the following terms:

1. In the first ground of appeal, it is contended that the learned Judge! erred in law when he refused to strike out the 68 applicants having held that the learned Deputy Registrar's decision based on that provision of the law is invalid in the sense that striking out 68 persons would not have resulted in the defeat of the suit as: assessment would still proceed with the persons that were valid parties to the suit.
2. In the second ground of appeal, the Appellant argued that the learned Judge erred in law when he purported to order the joinder of the 68 applicants as he was wanting in jurisdiction since the High Court had concluded the proceedings and delivered its judgment and was therefore functus officio. In support of these grounds of appeal, State Counsel Silwarnba submitted on behalf of the appellant that the learned Judge made two correct and critical findings, namely, that there was no order to join the 68 proposed plaintiffs by the Court that determined liability; and that the rule which the learned Deputy Registrar relied upon to join the 68 proposed plaintiffs was wrong. Mr. Silwamba SC argued that the 68 individuals should not have been joined to the proceedings in view of the principle in Eureka Construction Limited v Attorney General, Consolidated Lighting Zambia Limited (Proposed Intervening Party)', where they held that a party cannot join proceedings after judgment.

Held

In view of the glaring irregularities that we have highlighted in this matter, it is our considered view that the learned Judge in the Court below did not properly exercise his inherent jurisdiction. We shall therefore allow this appeal and set aside the decision of the learned Judge and that of the learned Deputy Registrar. We make no order as to costs.

Appeal allowed.

1. The breach of O. 18/8/4 RSC in issue in the present appeal was certainly regulatory and in view of the facts, one that fell squarely within irregularities generally envisaged under RSC Order 2 r.1.
2. Rules must be followed but the effect of the breach will not always be fatal if the rule is merely regulatory or directory.
3. Order 18/8/4 of the RSC gives an applicant the options of either:
   • setting out the intended amendment in the body of the application, if it is a short amendment;
   • the applicant can also identify the proposed amendment by underlining them in red, where this is the first amendment;
   • by serving a copy of the amended document.
4. Cases should be decided on their substance and merit. The rules must be followed but the effect of the breach will not always be fatal if the rule is merely regulatory or directory.