Res judicata

Civil procedure – Administration of justice – Requirements for defence of res judicata to succeed
Civil procedure – Administration of justice - Rationale for principle of res judicata
Civil procedure – Administration of justice - Whether res judicata applies to matters that existed at the time of instituting the first action but were never claimed

There was a dispute between the Appellant and the 2nd Respondent regarding ownership of Subdivision 5 of Subdivision 1 of Subdivision D of Farm 397, Lusaka. The Appellant commenced Cause No 2008/HP/0453, and later withdrew it. After withdrawing his action, the Appellant swung into action and forcibly evicted the 2nd Respondent's servant who was in possession of the property at the time. He also razed the 2nd Respondent's maize field and fruit trees with a bulldozer and commenced development on the property. The 2nd Respondent was not happy with the Appellant's conduct. He sued the Appellant and the 1st and 3rd Respondents in Cause No. 2009/HP/0628. The High Court, after hearing the parties, found in favour of the Appellant and dismissed the Respondent's action. The 2nd Respondent appealed to the Supreme Court under Appeal No 124/2011, and the Supreme Court overturned the decision of the High Court after finding that the 2nd Respondent was the lawful owner of the property. Thereafter, the Appellant commenced a new action under Cause No. 2012/HP/1523. Before the matter could be heard, the 2nd Respondent raised a preliminary objection that the Appellant's action was res judicata.

The trial Judge found that the issues raised and the reliefs sought, in the case that was before him, arose from the same transaction as those upon which the Supreme Court had delivered a judgment in Appeal No. 124/2011. He found that the reliefs which were being sought in the case
before him could have been raised in Cause No 2009/HP/0628 because they were evident at that time and foreseeable in the event of the Appellant not succeeding at trial or on appeal to the Supreme Court, as it turned out to be. The trial Judge dismissed the Appellant's action. Dissatisfied with the Ruling of the learned trial Judge, the Appellant appealed.

Held
1. In order that the defence of res judicata may succeed, it is necessary to show that not only the cause of action was the same, but also that the plaintiff has had an opportunity of recovering, and but for his own fault, might have recovered in the first action, that which he seeks to recover in the second. Bank of Zambia v Jonas Tembo (2002) ZR 103 and ANZ Grindlays Bank (Zambia) Limited v Christine Kaona (1995-1997) ZR 85 followed
2. The rationale for res judicata is that there must be an end to litigation. Basically, the purpose of the principle of res judicata is to support the good administration of justice in the interests of both the public and the litigants, by preventing abusive and duplicative litigation. The twin principles of res judicata are often expressed as being (1) the public interest that courts should not be clogged by re-determinations of the same disputes and (2) the private interest that it is unjust for a man to be vexed twice with litigation on the same subject matter. Societe Nationale Des Chemis De Pur Congo (SNCC) v Joseph Nonde Kakonde (2013) 3 ZR 51 followed.
3. All the issues raised in this matter and the reliefs sought, could have been claimed under Cause No 2009/HP/0628 as alternative reliefs because the said reliefs were evident at the time and foreseeable in the event of the Appellant not succeeding at trial or on appeal. Res Judicata is not only confined to similarity or otherwise of the claims in the first case and the second one. It extends to the opportunity to claim matters which existed at the time of instituting the 1st action and giving judgment. Case of Societe Nationale Des Chemis De Pur Congo (SNCC) v Joseph Nonde Kakonde (2013) 3 ZR 51 followed.