Headnote
This appeal is against the ruling of the High Court in which the learned Judge dismissed the Appellant's application for joinder of the 2nd Respondent as a party to the proceedings. On 20th March 2013, the Minister of Mines, Energy and Water Development (“Minister”) decided to cancel with immediate effect the petroleum exploration licence which had been issued to the Appellant in respect to Block 31. The Appellant appealed the decision of the Minister to the High Court alleging illegality, breach of natural justice, breach of legitimate expectation, procedural impropriety and irrationality. Whilst the appeal was pending, Block 31 was re-advertised by the Minister and a licence was issued to the 2nd Respondent. This prompted the Appellants to make an application for an order for joinder of the 2nd Respondent to the proceedings. The learned Judge held that the granting of the order for joinder of a party is discretionary and in exercising that discretion, the court is guided by the interests of justice. The learned Judge then found that the 2nd Respondent, if they were joined, were not going to make any meaningful contribution as they could not speak to the decision taken by the Minister as they were not the issuing authority. That therefore, joining them will not be absolutely necessary for there to be proper determination of all the issues in the matter.
Disenchanted with the ruling, the Appellant appealed to this Court.
Held:
1. The threshold under Order 14 Rule 5 (1) of the High Court Rules Cap 27 of the Laws of Zambia (“High Court Rules”) is that, for a party to be joined to the proceedings it must either; (1) be a person who may be entitled to, or claim some share or interest in the subject matter of the suit or (2) who may likely to be affected by the result or outcome of the suit. For an application for joinder to be granted, one does not necessarily have to satisfy both requirements, but either of the two, would suffice.
2. The provisions under Order 15 Rule 4(1) Rules of the Supreme Court (“White Book”) are not to the same effect as Order 14 rule 5(1) of the High Court Rules. Order 15 Rule 4(1) of the White Book brings to the fore other additional circumstances when one can be joined as a party which mainly deals with issues of avoiding multiplicity of actions.
3. The cancellation of the Appellant’s licence and the granting of a licence to the 2nd Respondent, relates to the same subject matter, being Block 31. This gives the 2nd Respondent sufficient interest in the matter and is likely to be affected by the outcome of the decision in the court below.
4. The learned Judge in the court below, having found that the 2nd Respondent were likely to be affected by the outcome of the proceedings, which in our view was the correct finding, should not have stated that the Appellant should wait until the judgment of the court and then see if it is affected. That was an evident contradiction of its earlier finding. In any case, the issue is not whether a person will be affected, but whether he is likely to be affected.
5. There are a lot of issues which have been raised in arguments as to why the 2nd Respondent will not be affected by the outcome of the proceedings, that is the more reason why they need to be party to the proceedings, in order for them to make representations and assist the court below in arriving at a decision which will not adversely affect them.
Appeal allowed.
