PARTIES

MINORS AND PATIENTS

1. Order 80 rule 2 of the Rules of the Supreme Court of England 1965 Edition (the “RSC”) states that:

(i) A person under disability may not bring, or make a claim in any proceedings
except by his next friend and may not acknowledge service, defend, make a
counterclaim or intervene in any proceedings, or appear in any proceedings
under a judgment or order notice of which has been served on him, except by
his guardian ad litem.
(ii) Subject to the provisions of these rules, anything which in the ordinary conduct
of any proceedings is required or authorised by a provision of these rules to be
done by a party to proceedings shall or may, if the party is a person under
disability, be done by his next friend or guardian ad litem.
(iii) A next friend or guardian ad litem of a person under disability must act by a
solicitor.

2. The Editorial notes to order 80 of the RSC provides for persons to which this provision applies. It
states that:

“For obvious reasons, it is important that a party involved in legal proceedings who
happens to be (1) a minor (i.e. an infant), or (2) by reason of mental disorder…,
incapable of managing and administering his property and affairs (i.e. a patient),
should be protected from instigating ill-advised legal proceedings and should not be
prejudiced in the conduct of the proceedings.”

3. Quite clearly therefore, a person under disability such as a minor or a patient does not have
capacity to commence proceedings unless they do so through a guardian ad litem or next friend.

4. In the case of Edmond Richard Hill by Thomas Denny Harcourt Catchpole and Another v Zalbro
United Transport Company Limited and Another (1970) Z.R. 46, the first Plaintiff who was under a
disability (suffered an injury from an accident) sued through his next friend Mr. Thomas Denny
Harcourt Catchpole.

5. Similarly, in the case of Felicitus Mwaba and Queen Mwaba (suing by her father and next friend
Leonard Mwaba) and Angela Mwaba (Suing by her father and next friend) v Mwababu Machisa and
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 another (1987) Z.R. 114, the 2nd and 3rd Plaintiffs who were minors sued through their father and
next friend.

EXECUTORS AND ADMINISTRATORS

6. Order 16 of the High Court Rules, Chapter 27 of the Laws of Zambia states that:

1. Where, after the institution of a suit, any change or transmission of interest or liability
occurs in relation to any party to the suit, or any party to the suit dies or becomes
incapable of carrying on the suit, or the suit in any other way becomes defective or
incapable of being carried on, any person interested may obtain from the Court or a
Judge any order requisite for curing the defect, or enabling or compelling proper
parties to carry on the proceedings:
..…

4. If there be two or more plaintiffs, and one of them die, and if the cause of action shall
not survive to the surviving plaintiff or plaintiffs alone, but shall survive to them and the
legal representative of the deceased plaintiff jointly, the Court or a Judge may, on the
application of the legal representative of the deceased plaintiff, enter the name of such
representative in the suit in the place of such deceased plaintiff, and the suit shall proceed
at the instance of the surviving plaintiff or plaintiffs, and such legal representative of the
deceased plaintiff. If no application shall be made to the Court or a Judge by any person
claiming to be the legal representative of the deceased plaintiff, the suit shall proceed at
the instance of the surviving plaintiff or plaintiffs; and the legal representative of the
deceased plaintiff shall, after notice to appear, be interested in, and shall be bound by the
judgment given in the suit, in the same manner as if the suit had proceeded at his instance
conjointly with the surviving plaintiff or plaintiffs, unless the Court or a Judge shall see
cause to direct otherwise.

…..

6. If any dispute arise as to who is the legal representative of a deceased plaintiff, it shall
be competent to the Court or a Judge either to stay the suit until the fact has been duly
determined in another suit, or to decide, before the hearing of the suit, who shall be
admitted to be such legal representative for the purpose of prosecuting the suit.

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7. Therefore, an executor or an administrator is the person with the capacity to sue or to be sued on
behalf of the estate of a deceased person.

8. Example is the case of Isaac Tantameni Chali (executor of the Will of the late Mwala Mwala -Vs-
Liseli Mwala (1995/1997) Z.R. 199 where the estate of the deceased was represented by the
executor.

COMPANIES

9. Section 22 of the Companies Act Chapter 388 of the Laws of Zambia states that:

“A company shall have, subject to this Act and to such limitations as are inherent in its
corporate nature, the capacity, rights, powers and privileges of an individual.”

10. Order 5 rule 6 of the RSC however states that:

(2) Except as expressly provided under any enactment, a body corporate may not
begin or carry on proceedings otherwise than by a solicitor.

11. Quite clearly therefore, a company can sue and be sued in its own name as it has been clothed
with the powers and privileges of an individual under section 22 of the Companies Act. However, a
company may only sue and be sued through an Advocate.

COMPANY IN RECEIVERSHIP

12. In the case of Magnum (Zambia) Limited v Basit Quadri (Receiver/Manager) & Grindlays Bank
International Zambia Limited (1982) Z.R. 141 the court held that:

“A receiver who was an agent of the company under receivership was there to secure
the interests of the debenture holder and in those circumstances; the company
concerned was disbarred from instituting legal proceedings against its
receiver/manager. It would be an absurd proposition to suggest otherwise. Apart from
principles of law, mere common sense would dictate the argument put forward by Mr.
Mumba. If the action was allowed to proceed in its present form, it would be
tantamount to suggesting that the receiver can institute proceedings against himself.
Quite clearly, a company under receivership has no locus standi independent of its

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 receiver. As long as a company continues to be subjected to receivership, it is the
receiver alone who can sue or defend in the name of the company.”1

13. In the case of Avalon Motors Limited (in Receivership) v Bernard Leigh Gadsden Motor City
Limited(1998) Z.R. 41 the court stated that:

“It would be improper for a current receiver being sued in his own name by the
company as this would amount to suing himself...However when the current receiver is
the wrongdoer (as where he acts in breach of his fiduciary duty or with gross
negligence) or where the directors wish to litigate the validity of the security under
which the appointment has taken place or in any other case where the vital interests of
the company are at risk from the receiver himself or from elsewhere but the receiver
neglects or declines to act, the directors should be entitled to use the name of the
company to litigate.”2 (Emphasis ours)

14. Quite clearly, a company under receivership has no locus standi independent of its receiver. The
company only has locus standi independent of its receiver in certain instances such as those listed
in the Avalon case.

PARTNERS AND FIRMS

15. Order 14 rule 7 of the High Court Rules provides that:

“Any persons claiming or being liable as co-partners may sue or be sued in the name
of their respective firms (if any); and any party to an action may, in such case, apply to
the Court or a Judge for a statement of the names of the persons who are co-partners
in any such firm, to be furnished in such manner and verified on oath or otherwise as
the Court or a Judge may direct.”

16. Quite clearly therefore, any action by or against persons carrying on business as partners must be
instituted in the name of the firm. Example is the case of Rating Valuation Consortium & DW
Zyambo & Associates (suing as a firm) v Lusaka City Council & Zambia National Tender Board
(2004) Z.R. 109.

1
Ibid….page 146
2
Ibid..page 43

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UNINCORPORATED BODIES

17. In the case of National Milling Limited Company v A. Vashee (Suing as Chairman of Zambia
National Farmers Union) 2000 Z.R. 98 the Court held that an unincorporated association is not a
legal person and therefore cannot sue or be sued. These bodies have to be sued or sue in the
name of the representative of such a body.

18. In the case of Major Richard Kachingwe (suing in his capacity as National Secretary of the
Movement for Multi-Party Democracy) v Dr Nevers Mumba (2013) Vol 3 Z.R. 17, the Court stated
that:
“The legal status of a political party is that it is a club. It is settled that there are three
main categories of clubs, namely (a) a members club which is unincorporated and
unless otherwise exempted, is normally registered under the Societies Statutes, (b)
incorporated clubs which are registered under legislation relating to companies; and (c)
proprietary clubs which may be incorporated or unincorporated. 3”

19. Thus if a club is registered under the Societies Act, it is unincorporated and cannot sue or be sued.
However, there are other types of clubs that maybe incorporated or unincorporated depending on
the statute under which they are registered or established.

20. For instance in Derrick Chitala (Secretary of the Zambia Democratic Congress) v The Attorney
General (1995/1997) Z.R. 91.

21. In the case of Harry Mwanga Nkumbula and Simon Mwansa Kapwepwe v United National
Independence Party (1978) Z.R 388 the Plaintiffs sued a political party in its own name. The Court
stated at page 392 that:

“It is settled principle of common law that an unincorporated body has no legal entity
capable of suing or being sued. It is equally settled principle of law that where
numerous persons have the same common interest or defence in a matter, one or
more may sue or be sued or the court may authorise one or more to defend on behalf
of or for the benefit of all.”

3
IBID..Page 28

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22. Clearly therefore, an unincorporated body such as a political party cannot sue in its own name. The
correct mode of commencing an action against such a body is through a representative action.
Such an action would for instance read:

Major Richard Kachingwe (suing in his capacity as National Secretary of the Movement for
Multi-Party Democracy) v Dr Nevers Mumba (2013) Vol 3 Z.R. 17.

REPRESENTATIVE ACTIONS

23. Order 14 of the High Court Rules, Chapter 27 of the Laws of Zambia states that:

1. If any plaintiff sues, or any defendant is sued, in any representative capacity, it shall
be expressed on the writ. The Court or a Judge may order any of the persons
represented to be made parties either in lieu of, or in addition to, the previously
existing parties.
…..
3. Where more persons than one have the same interest in one suit, one or more of such
persons may be authorised to sue or to defend in such suit for the benefit of or on behalf
of all parties so interested.

24. Order 15 rule 12 (1) of the RSC states that:

“Where numerous persons have the same interest in any proceedings, not being such
proceedings as are mentioned in rule 13, the proceeding may be begun, and unless
the court otherwise orders, continued, by or against any one of them as representing
all or as representing all except one or more of them .”

25. In the case of National Milling Limited Company v A. Vashee (Suing as Chairman of Zambia
National Farmers Union) the Court held that where there are numerous persons having the same
interest in any proceedings, the proceedings may begin and unless the court orders, be continued
by or against one or more of them representing all or as representing all except one or more of
them.

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26. In the case of Major Richard Kachingwe (suing in his capacity as National Secretary of the
Movement for Multi-Party Democracy) v Dr Nevers Mumba (2013) Vol 3 Z.R 17 the Court held that
for a Plaintiff to pursue an action in a representative capacity, there must be common interest with
those he purports to be representing.

27. Proceedings against the State

Section 12 of the State Proceedings Act, Chapter 71 of the Laws of Zambia provides that civil
proceedings by or against the State shall be instituted by or against the Attorney General.

THIRD PARTY PROCEEDINGS

28. Order 14 of the High Court Rules states:

“Where a person has a joint and several demand against two or more persons, either
as principals or sureties, it is not necessary for him to bring before the Court as parties
to a suit concerning that demand all the persons liable thereto, and he may proceed
against any one or more of the persons severally or jointly and severally liable. Where
a defendant claims contribution, indemnity or other remedy or relief over against any
other person, he may apply to have such person made a party to the suit.”
29. Thus where a party applies to join a defendant to the proceedings for purposes of seeking,
contribution, indemnity or other remedy, such proceedings are known as third party proceedings.

THIRD PARTY NOTICE (Order 16 rule 1 of the RSC)

30. Where in any action a defendant who has given notice of intention to defend
(a) claims against a person not a party to the action any contribution or indemnity or
(b) claims against such a person any relief or remedy relating to or connected with the original
subject matter of the action and substantially the same as some relief or remedy claimed
by the plaintiff or
(c) requires that any question or issue relating or connected with the original subject matter of
the action should be determined not only as between the plaintiff and the defendant but
also as between either or both of them, then the defendant may issue a notice (Third Party
Notice) containing the statement of the nature of the claim made against him and as the
case may be either of the nature any grounds of the claim or the question or issue required
to be determined.

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31. A defendant may not issue a third party notice without the leave of the Court.

32. Where a third party notice is served on the person against whom it is issued, he shall from the time
of service be a party to the action with the same rights in respect of his defence against the claim
as if he had been sued in the ordinary way by the defendant who issued the notice.

33. The Defendant should then seek third party directions for trial by summons.

NON JOINDER AND MISJOINDER OF PARTIES

34. Order 14 of the High Court rules provides that:

5. (1) If it shall appear to the Court or a Judge, at or before the hearing of a suit, that
all the persons who may be entitled to, or claim some share or interest in, the subject-
matter of the suit, or who may be likely to 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. In such case, the Court shall
issue a notice to such persons, which shall be served in the manner provided by the
rules for the service of a writ of summons, or in such other manner as the Court or a
Judge thinks fit to direct; and, on proof of the due service of such notice, the person so
served, whether he shall have appeared or not, shall be bound by all proceedings in
the cause: (non joinder).

Provided that a person so served, and failing to appear within the time limited by the
notice for his appearance, may, at any time before judgment in the suit, apply to the
Court or a Judge for leave to appear, and such leave may be given upon such terms (if
any) as the Court or a Judge shall think fit. The Court or a Judge upon the application
of any party may give directions for service upon a new party of copies of any writ of
summons or other document or process and also may give such other directions in
relation to the adding of such new party as justice and the circumstances of the case
may require.

(2) The Court or a Judge may, at any stage of the proceedings, and on such terms as
appear to the Court or a Judge to be just, order that the name or names of any party or

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 parties, whether as plaintiffs or as defendants, improperly joined, be struck out
(Misjoinder).

(3) No suit shall be defeated by reason of non-joinder or misjoinder of parties.

35. Thus Order 14 (5) (1) relates to non-joinder whilst Order 14 (5) (2) relates to misjoinder of parties.

36. The Supreme Court in The Attorney-General v Tall and Zambia Airways Corporation Limited
(1995/1997) Z.R. 54 held as follows regarding joinder of parties:

“The words ‘at or before the hearing of a suit’ in Order 14, Rule 5 of the High Court Act
Cap 50 mean ‘before delivery of a judgment in a suit’ and joinder can validly occur
before judgment has been delivered.
Words of Order 15, Cap 50 too restrictive, but court has jurisdiction and discretion to
order a party to be joined in the interests of justice.
Both Order 14, the English Order 15, as well as section 13 of Cap 50, are intended to
avoid a multiplicity of actions.”

37. The Supreme Court stated in that case4

“In our view, a true construction of the words " at or before the hearing of a suit" as
contained in our order 14 of Cap. 50 mean or must be interpreted to mean before the
delivery of a judgment in a suit. This to us appears to be the only reasonable
interpretation of that phrase in the order because the delivery of a judgment is a
hearing of and a process of a suit. It follows therefore that in a proper case a Court can
join a party to the proceedings when both the plaintiff and the defendant have closed
their cases and before judgment has been delivered by invoking order 14 rule 5.”

38. However, the Supreme Court in London Ngoma and Others v LCM Company Limited and United
Bus Company of Zambia Ltd (Liquidator) (1999) Z.R. 75 on the authority of the Attorney General v
Tall cited above held:

4
Page 56, ibid

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 “…In terms of rule 67 of the Supreme Court rules and the decided case of the
Attorney-General v Tall and Another, the court has inherent jurisdiction to join a party
to the action after judgment has been entered.”

39. It is clear from the foregoing that a party can be joined to proceedings even after judgment has
been entered by the court.

40. The Court in the case of Hotelier Limited and Ody’s Works Limited V Finsbury Investments Limited
(2012) Z.R. 17 stated that:

“Although order 14 rule 5 of the High court rules makes provision for adding a person
to the proceedings as plaintiff or defendant, it does not fully prescribe the practice and
procedure pursuant to which such quest or desire can be achieved. It can therefore
safely be said that there is a gap in our law as it to practice and procedure for joinder of
a party pursuant to order 14 rule 5 of the High Court rules. Having found that there is a
gap in our law and procedure on joinder, Order 14 rule 5 of the High Court rules should
be read with Order 15 rule 6 of the Rules of the Supreme Court .”5

41. Therefore, a party that seeks to join another party to an action must comply with the requirements
for joinder as provided under both Order 14 rule 5 of the High Court Rules 6 and Order 15 rule 6 of
the Rules of the Supreme Court of England. (“RSC”)

42. The said Order 15 rule 6 (2) and (3) of the RSC states that:

“… at any stage of the proceedings in any cause or matter the Court may on such
terms as it thinks just and either of its own motion or on application -

(b) Order any of the following persons to be added as a party, namely –

(i) any person who ought to have been joined as a party or whose presence before the
Court is necessary to ensure that all matters in dispute in the cause or matter may be
effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a
question or issue arising out of or relating to or connected with any relief or remedy
5
Ibid at page 26
6
Chapter 27 of the laws of Zambia

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 claimed in the cause or matter which in the opinion of the Court it would be just and
convenient to determine as between him and that party as well as between the parties
to the cause or matter.

(3) An application by any person for an order under paragraph (2) adding him as a
party must, except with the leave of the Court, be supported by an affidavit
showing his interest in the matters in dispute in the cause or matter or, as the case
may be, the question or issue to be determined as between him and any party to
the cause or matter.”

43. Therefore a party seeking to join another party to an action must satisfy the Court by affidavit that:

1. The party to be joined has an interest in the matter or;

44. In the case of Mike Hamusonde Mweemba v Kamfwa Obote Kasongo and Zambia State Insurance
Corporation Limited (2006) Z.R. 101 it was 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.”7

ALTERATION OF PARTIES

45. Order 16 of the High Court Rules states:

“(1) Where, after the institution of a suit, any change or transmission of interest or
liability occurs in relation to any party to the suit, or any party to the suit dies or
becomes incapable of carrying on the suit, or the suit in any other way becomes
defective or incapable of being carried on, any person interested may obtain from the
Court or a Judge any order requisite for curing the defect, or enabling or compelling
proper parties to carry on the proceedings :”

7
Ibid page 109

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46. Order 16 of the High Court Rules is used after the institution of the suit:

(i) there is any change or transmission of interest or liability in relation to any party to the suit;
(ii) a party to the suit dies or becomes incapable of carrying on the suit; or
(iii) the suit becomes defective or incapable of being carried on.

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