Here is the DISSENTING JUDGMENT in the case of Miles Sampa: WOOD, JS, dissenting Judgment I have had the advantage of reading the majority judgment. I do not, however, agree with the conclusion that this matter ought to be sent back to the learned Judge to consider inter-partes the application that was before her. The arguments that were advanced by the respondents are a clear indication that they have adequately responded to the appellants’ arguments to enable this court to reach a decision on whether or not they had sufficient interest or were aware of the proceedings that resulted in the consent Judgment. It is quite clear to me from the record of appeal that the learned Judge had decided that the appellants could not be joined to the proceedings. She referred to the application in her ruling as “misconceived” a “waste of the court’s time”, “incompetent” and “lacking merit.” This in my view is a clear indication that she had reached a decision. The most important issue to determine at this stage is whether or not the appellants had sufficient interest and locus standi. Whether or not they have a good case is a question to be determined on the merits. In Abel Mulenga and others v. Mabvuto Adan Avuta Chikumbi and others1 it was held that: “In order for the appellants to be joined as parties to this action, the appellants ought to have shown that they have an interest in the subject matter of the action… The mere fact that the appellants may have been affected by the decision of the court below does not clothe them with sufficient interest or locus standi entitling them to be joined to the dispute.” In Eureka Construction Limited v. Attorney General and another2 it was held that: “In a proper case, a court can join a party to the proceedings when both the plaintiff and defendant have closed their cases and before judgment has been delivered by invoking Order 14 rule 5 (of the High Court Rules).” It goes further to state that: “… The proposed intervening party in the instant case has come too late in the day. Above all, we see no interest or locus standi in the appeal.” A perusal of the record of appeal shows that the appellants were all contenders in the race to become President of the Patriotic Front. The consent judgment declared the General Conference that elected the 1st appellant as President of the Patriotic Front as illegal null and void and consequently quashed it. It can be seen from the consent judgment that the 1st appellant, in particular, was affected by it and as such was an interested party entitled to notice of any action taking place which affected him. I cannot say the same for the other two appellants as they are not mentioned in the consent judgment. The respondents cannot be heard to argue that the 1st appellant does not have sufficient interest or locus standi in the matter when the 1st appellant is specifically mentioned in the consent judgment. The fact that the 1st appellant is mentioned in the consent judgment is an indication that the respondents have recognized his interest in the matter. I do not, therefore, agree that the 1st appellant did not have sufficient interest or locus standi within the context of Abel Mulenga and others v. Mabvuto Adan Avuta Chikumbi3. It was argued by the respondents that the London Ngoma4 case can be distinguished from this one in that in the latter case the appellants had not been aware of the proceedings while in this one the appellants were. I wish to point out the following: Initially the proceedings were against Mrs. Bridget Atanga in her capacity as Secretary General of the Patriotic Front. Mrs. Bridget Atanga’s position in the case would have been the same as that of the appellants. Therefore, the appellants were covered by the defence that Mrs. Bridget Atanga was going to adopt and did not need to join the action. The need for the appellants to join the action arose when the respondents substituted Mrs. Bridget Atanga for Mr. Davies Chama. Therefore, the real proceedings which the appellants were required to be aware of were those relating to the substitution of parties prior to the consent judgment. It is common cause that the respondents proceeded ex parte in the substitution proceedings. Events happened rather rapidly after the writ was filed in this matter on 1st December, 2014. An injunction was obtained against Mrs. Bridget Atanga. On 3rd December, 2014 an ex parte order of alteration of parties under Order 15 rule 4 of the Rules of the Supreme Court 1999 edition was made. It is a requirement under this rule that if the facts are in dispute, the application should be supported, as a rule, by affidavit, which should be served on all parties to the action. This does not appear to have been done as the record of appeal simply shows the ex parte summons and order altering the parties from Mrs. Bridget Atanga to Mr. Davies Chama on 3rd December, 2014. On the same day, a consent judgment containing two declarations and an injunction in perpetuity was signed by four law firms and endorsed by the learned Judge of the High Court. The consent judgment between the respondents upheld the election of Mr. Edgar Chagwa Lungu, an election in which none of the other contestants participated. Arguments were advanced to the effect that the second General Conference which elected the 1st appellant was held in disobedience of the court injunction and, therefore, was illegal. As such the appellants could not rely on an illegal act to seek a joinder. The record of appeal shows that there was no proper service on Mrs. Bridget Atanga. The affidavit of service itself states that documents were served on Mr. Anthony Kasolo the Deputy Secretary General of the Patriotic Front who refused to accept service. The affidavit of service does not disclose sufficient reasons why service was not effected on Mrs. Bridget Atanga. Quite clearly, it does not comply with Order 10 rule 6 of the High Court Rules, Cap 27 of the Laws of Zambia. There is, therefore, insufficient evidence to support the argument that the appellants were aware of the injunction. It is not enough to argue that they should have been aware because of the publicity surrounding the events leading to this case or the case itself. It is not necessary or expedient, in the interests of justice, to only remit the case to the High Court. In my judgment, there was more than sufficient material before this court to decide whether or not to join the appellants to these proceedings without the need to remit this matter to the same Judge to decide again. I would in the circumstances adopt the reasoning in the London Ngoma case and join the 1st appellant to the action. MUYOVWE JS: I agree with my brother Mr. Justice Wood KAOMA JS: I agree with my brother Mr. Justice Wood
Posted on: Tue, 16 Dec 2014 08:13:25 +0000