- The Zambia Gazette
- Subject Index
- Law scholarship
- About Us
- Contact Us
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:
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.
This appeal was against the ruling of the High Court in which the appellant's application for joinder of the second respondent as a party to the proceedings was declined. This followed, the Minister of Mines, Energy and Water Development’s decision to cancel the petroleum exploration issued to the Appellant in respect to Block 31. The appellant appealed the decision of the minister to the High Court and whilst the appeal was pending, Block 31 was re-advertised by the minister and a licence was issued to the second respondent. This prompted the appellants to make an application for an order for joinder of the second respondent to the proceedings.
The court had to decide whether the joinder was necessary and whether the lower court had erred in its findings.
The court held that for a party to be joined to the proceedings it must either be a person who may be entitled to, or claim some interest in the subject matter of the suit or who may likely be affected by the result or outcome of the suit.
The cancellation of the appellant’s licence and the granting of a licence to the second respondent, related to the same subject matter, being Block 31. This gave the second respondent sufficient interest in the matter and was likely to be affected by the outcome of the decision in the court below.
The appeal was consequently allowed.
This is an appeal against a judgment of the High Court granting the 1st Respondent possession of Subdivision “B” of Stand 401a Lusaka which it purchased from the 2nd Respondent in 2013. By a written contract of sale made sometime in 2013, the 2nd Respondent offered to sale to the 1st Respondent, Subdivision “B” of Stand 401a. Clause 15 of the special conditions allowed the vendor to continue being in occupation of the houses situated on the subject property free of rent until 31 December 2014. The 1st Respondent obtained a certificate of title relating to the property on 17 February 2014. At the time of the sale of the property, the Appellants occupied the houses situated on the subject property as tenants of the 2nd Respondent. Tenancy agreements were entered into with all the tenants annually. The tenants included employees and ex-employees of the 2nd Respondent while others had no employment connection with the 2nd Respondent. Prior to 2010, the tenancy agreements contained a clause which gave the Appellants a right of first refusal to buy the houses they occupied in the event that the 2nd Respondent wished to sell the property. However, there was no similar clause in the tenancies signed from 2010. Following the sale of the property, the 2nd Respondent issued notices to vacate to the Appellants, indicating that the lease agreements for 2013 would not be renewed in 2014 because the property had been sold. The 1st Respondent never served the Appellants with notices to terminate or notices to vacate after purchasing the property.
The Appellants declined to vacate the property after 31 December 2014 on the basis that they were entitled to the right of first refusal to purchase the houses. They claimed that the clause on right of first refusal was unilaterally removed by the 2nd Respondent and that they had accrued rights to buy the houses. They also averred that they were protected tenants under the Rent Act, Chapter 206 of the Laws of Zambia and that the notices of termination issued by the 2nd Respondent did not meet the requirements of the Rent Act. The Appellants further cited numerous irregularities concerning the manner the action was commenced by the 1st Respondent under Order 113 of the White Book. That the Appellants were not trespassers or squatters and therefore, Order 113 did not apply to them, meaning the proceedings were a nullity and ought to have been brought under the Rent Act. The Judge found that there had never been a landlord and tenant relationship between the 1st Respondent and the Appellants and absent such relationship, there was no impropriety on the part of the 1st Respondent in commencing the action under Order 113 rule 1 of the White Book. The Judge further found that the Appellants were given first, three months’ notice to vacate the houses and a further six months’ notice to vacate. As a result, the Judge dismissed the contention that the Appellants were not given notices terminating their tenancies by the 1st Respondent. The Judge also found the argument that the Appellants had accrued rights to buy the houses untenable. The Appellants appealed.
1. A tenancy may be terminated by either the landlord or the tenant and the party who intends to terminate the tenancy must serve a valid notice on the other party. However, where a tenancy that was entered into for a fixed period comes to an end, a notice of termination does not have to be issued. The tenancy is determined by the effluxion of time.
2. The landlord can give the tenant a notice to vacate at the end of a fixed term but a tenant has a right to challenge a notice to vacate if it is not given properly or if he disagrees with the reason given. Because a tenant receives a notice to vacate does not necessarily mean that he has to move out. If the landlord wants to evict him, they must apply to court for the grant of a possession order under the Rent Act.
3. Two things could have happened. First the Appellants might have been given notices to terminate before the property was sold. If that is what happened, then the tenancy agreements terminated on the dates indicated in the notices and the Appellants should have yielded up possession. The other thing that could have happened is that the tenancies expired by the effluxion of time. The notices to vacate given by the 2nd Respondent on 21 May 2014 referred to a letter dated 24 January 2014 wherein, the Appellants were advised of the expiry of the tenancy agreements for 2013 and that the same would not be renewed in 2014 because the property was sold. This means the 1st Respondent ought to have known about the tenancy agreements prior to finalising the transaction given that the Appellants were in occupation of the houses. The 1st Respondent will have bought the property subject to the rights of the Appellants as tenants and the title it acquired as purchaser will have been subject to the rights (if any), of the Appellants as tenants (Mwenya and Randee v Kapinga(1998) ZR 12 followed).
4. The 1st Respondent would have become the landlord and if it wanted to gain possession of the property before expiry of the tenancy agreements, it ought to have given termination or eviction notices to the Appellants but if the tenancies expired naturally, there would have been no need for the 1st Respondent to give notices to terminate or to vacate. Either way, the tenancy agreements terminated. However, because of clause 15 of the special conditions in the contract of sale which allowed the 2nd Respondent to continue being in occupation of the houses situated on the subject property free of rent until 31 December 2014, the Appellants remained in occupation of the houses with the licence or consent of the Respondents. During that period the Appellants could not be considered as trespassers or squatters.
5. The summary procedure under Order 113 can only be suitable for squatters and others without any genuine claim of right or who have since been transformed into squatters (Liamond Choka v Ivor Chilufya (2002) ZR 33 followed).
6. The procedure in Order 113 rule 1 applies only to the category of people prescribed in the rule. The first category is that of people who have entered into occupation of the property without the licence or consent of the person entitled to occupation or his predecessor in title. The second category applies to people who have entered into occupation with the licence or consent of the person entitled to occupation but have remained in such occupation,
without the licence or consent of the person entitled to possession or his predecessor in title.
7. As explained at paragraph 113/8/2 of the White Book, the court has no discretion to prevent the use of the summary procedure where the circumstances are such as to bring them within its terms, eg against a person who has held over after his licence to occupy has terminated, although the order will not apply before the licence has expired.
8. A landlord is entitled to use the summary proceedings under Order 113 if he can demonstrate his right to do so, and the court has no discretion to deny such use merely on the grounds that the proceedings are rapid and summary and that the defendants did not enter as squatters (Greater London Council v Jenkins  1 WLR 155 followed).
9. The Appellants continued in occupation by licence or consent of the Respondents only up to 31 December 2014. Thereafter, they remained in occupation without the consent or licence of either of the Respondents. The 1st Respondent had established its right to the property as registered owner. The Appellants failed to establish any legal or equitable interest in the property. They became trespassers and it is irrelevant that the 1st Respondent did not issue notices to vacate after it acquired the property.
10. The only claim that can be made in proceedings under Order 113 of the White Book is for the recovery of possession of land and no other cause of action can be joined with such a claim, and no other relief or remedy can be claimed in such proceedings. However, if on the hearing of the summons, it appears that the claim of the plaintiff is not within the ambit of Order 113 or the claims for relief or remedy have been joined with the claim for possession of land which could not or ought not to have been so joined or that for some other reason the proceedings are irregular, the Court may dismiss the summons or give leave to amend to correct any irregularity on such terms as it thinks fit.
11. There was no serious dispute as to the title of the 1st Respondent to the subject property to bar the latter from commencing proceedings under Order 113 and it could not have been apparent that the matter would raise serious contentious issues for determination for the Court to dismiss the summons or make an order that the matter was to proceed as if begun by writ.
12. In terms of Order 2 rule 1 of the White Book, if in the beginning or purporting to begin any proceedings there has, by reason of anything done or left undone, been a failure to comply with the requirements of the rules, whether in respect of time, place, manner, form or content or in any respect, such failure is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
13. Under Order 2 rule 2 of the White Book the Court may, on the ground that there has been such failure and on such terms as to costs or as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order. However, the application must be within reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
14. The Appellants never applied under Order 2 rule 2 to set aside the proceedings for irregularity despite the many irregularities raised most of which did not touch on the issue of jurisdiction. Instead, the Appellants filed affidavits in opposition to the originating summons and attended the hearing of the proceedings and then filed detailed submissions pointing out the alleged irregularities. The Appellants had waived their right to object when they took fresh steps in the action after becoming aware of the irregularities.
The deceased was employed in 2004 as a legal officer of the Respondent. The Respondent employed 2 other legal officers in 2007 as the deceased’s juniors working under the deceased’s supervision. The contracts of employment of the 2 junior legal officers provided for higher salaries than the deceased. In the course of the deceased’s employment, he was from time to time requested to render opinions on matters concerning the operations of the Respondent. On one or two occasions, second opinions were sought for the opinions given by the deceased. The deceased was appointed to act as legal counsel. The Respondent then advertised for the position of legal counsel. The Deceased and one of the junior legal officers applied for the position and after the interview the position was given to the junior legal officer. This infuriated the deceased and prompted him to resign on 28 April 2011 after giving 1 months’ notice. Following this, the deceased instituted proceedings in the Industrial and Labour Division of the High Court contending that the treatment that the Respondent subjected him to amounted to constructive dismissal. The court below dismissed the deceased’s allegations that the conduct amounted to breach of contract leading to constructive dismissal. The Appellant appealed against this decision.
1. An appeal based on findings of fact cannot lie to the Court of Appeal from the Industrial Relations Division of the High Court pursuant to section 97 of the Industrial and Labour Relations Act.
2. In order for the Supreme Court to reverse findings of fact by a trial Court the findings must be such that they are not supported by the evidence or are perverse. The Court below did not misdirect itself in the evaluation of the evidence and conclusion that the
deceased was not constructively dismissed. The findings did not meet the test in the Wilson Masauso Zulu case as they were supported by his evidence. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 followed
3. Issues not raised in the court below cannot be entertained on appeal.
The Appellants applied for leave to file a notice of motion pursuant to section 85 (6) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia (the “Act”).a Through the notice of motion, the Appellants sought to move the Court for an order that they were entitled to benefit from the judgment of the IRC on appeal to the Supreme Court in the case of Paddy Kaunda and Others v Zambia Railways Limited COMP/79/1992. In that case, the Supreme Court upheld the findings of fact by the IRC, that the appellants therein, who had been served with retrenchment letters on 29 September 1992, had remained in employment until 25 November 1992 because of the 90 days’ notice period and were, therefore entitled to benefit from salary increments effected during that period. The application by the Appellants to benefit from the case of Paddy Kaunda was first made to the Deputy Registrar in February 2006 through summons for leave to file a notice of motion under section 85 (6) of the Act. It was granted. The Respondent appealed to a single judge in chambers who allowed the appeal and overturned the ruling by the Deputy Registrar. The Appellants then escalated the matter to the full bench of the IRC. The full bench granted the application for leave to file the notice of motion. The Appellants then filed an originating notice of motion on 10 December 2009.
A single judge of the IRC heard the motion and dismissed it. The Appellants then challenged the decision of the single judge through appeal to the full bench. The full bench came to the conclusion that the appeal did not have merit. The reasons the Court gave for dismissing the appeal were that, firstly, while the Appellants relied on the case of Paddy Kaunda, the Supreme Court judgment in that case did not award the reliefs that the Appellants were seeking in this case. Secondly, the Court below noticed that 83 of the litigants in the case before it were also parties to the case of Inambwae Likando and Others v Zambia Railways Appeal No 169 of 2003 and found that since this case was decided by the Supreme Court, the appellants could not re-litigate the matter in the Court below. Thirdly, the Court below was of the view that although the doctrine of res judicata may not apply to section 85 (6) of the Act, a party cannot after losing a case, go back to court and seek to rely on that section to benefit from a decision in another case. The Appellants appealed advancing two grounds.
1. In the circumstances of this case, the Appellants cannot invoke section 85 (6) of the Act to benefit from the decision in the case of Paddy Phillimon Kaunda. That section cannot be relied upon by a party who has prosecuted his/her claim independently and lost. The section is not intended to provide a mechanism where parties can undertake separate litigation and later choose which judgment to benefit from. In this case, both the Court below and the single judge found that the Appellants were parties to either the case of Inambwae Likando or the case of Muwowo. It is not in dispute that the facts leading to the litigation in the Inambwae Likando case and the Muwowo case were the same as those that gave rise to the case of Paddy Phillimon Kaunda. All the three cases involved litigation by former employees of the Respondent who were separated from the Respondent in similar circumstances. They pursued their claims under the said different cases and the cases were determined by the Court.
2. Appeal dismissed.
This appeal arose from a High Court decision wherein the appellant was ordered to pay sand levy to the respondent. In the year 2000, the respondent sought information as to how much stone had been mined and sold. Such information was made available in 2007. The respondent claimed levies for the said period and the trial judge ruled in their favour.
The court of appeal had to decide on whether the trial judge had erred in holding that sand levy was payable at any point and not just at checkpoints established by the council, that the trial judge had erred in law and in fact holding that levies were payable in arrears and that a person who mines sand or sells it does not necessarily need to go through a checkpoint to pay levy.
The court held that the by-law that stated that levy was payable at any check point did not mean that levy was only payable at a checkpoint and that a checkpoint was one of the places to get payment but not the only one. Secondly, the court dismissed that levies could not be paid as arrears as ss 69(3) and (4) of the Local Government Act supported the fact that any levy not paid could be recoverable as debt, so the trial judge was correct
The case was dismissed