Development Bank of Zambia and Another v SUNVST Limited and Another (S.C.Z Judgment NO .3 of 1997) [1997] ZMSC 11 (5 March 1997);

SUPREME COURT

M. M. S. W. NGULUBE, C.J., SAKALA AND CHILA, JJ.S.

5TH AND 6TH MARCH, 1997

(S.C.Z JUDGMENT NO .3 OF 1997)

Civil procedure - Multiplicity of actions - Action commenced while others pending - Effect of.

Application by respondents by way of action instituted for an injunction to restrain the appellant bank from appointing a receiver, who had been appointed by the bank in purported exercise of powers under loan agreements and statute, such appointment effected while an earlier action by the bank for recovery of monies lent, was still pending.

Held:

(i) It was wrong plaintiff bank to commence an action in court and then at the same time adopt some measure of self-redress

(ii) The injunction should be quashed because there is already an action on the same subject matter and the court does not approve of the commencement of a multiplicity of procedures, proceedings and actions in different courts which may result in the courts making contradictory decisions on the same matter

For the Appellants: Mr D Gondwe of Development Bank of Zambia

For the Respondent: Mr G Kunda of George Kunda and Company

NGULUBE, C.J.: delivered the judgement of the court.

The case before us concerns the grant of an injunction to restrain the appointment of a receiver and Manager. The facts revealed in the case show that in an action numbered 1995/HN/307 the appellant bank had sued the respondents to recover certain monies which had been lent by the bank to the respondents. Among the claims endorsed in that action, was one for the repayment of the loan withi interest and in default a claim that the bank be at liberty to repossess the plant and machinery charged to the plaintiff bank on a specific charge dated 14th November, 1994. The facts further disclosed that while that action was pending the bank appointed the Manager and Receiver in exercise or purported exercise of powers claimed by the bank under the loan agreement and under statute. The borrowers who are the respondents in this action commenced an action numbered 1995/HN/1394 in which they applied for an injunction to restrain the bank appointing the Receiver. This is the action that has come up to the court in this appeal. In dealing with the application the learned judge in the court below found that the step taken by the bank of commencing an action in court and then at the same time adopting a measure of self redress was one to be deprecated. The learned trial judge viewed very dimly and with disapproval the appointment of a receiver and Manager after the litigation had already been commenced and while such litigation was pending in the earlier action for the recovery of the same money by litigation.

We listened to the arguments in this appeal; and would like to immediately affirm the judge on his disapproval of the action taken in this matter whereby one action is pending and some other steps are being pursued. We also disapprove of parties commencing a multiplicity of procedures and proceedings and indeed a multiplicity of actions over the same subject matter. The objection raised by the borrowers in this action to the bank pursuing the remedy of self redress in this action, that an action was pending, applies with equal force to the whole idea of the borrowers commencing a fresh action when there is already another one pending in the court with the result that various courts may end up making various conflicting and contradictory decisions because the parties have started another action in the courts. It follows therefore that we disapprove completely of the steps taken by the borrowers in commencing action No. 1995/HN/1394 when they could have made all the applications in the earlier action No 307. We also disapprove of the multiplicity of actions between the same parties involving carious issues proposed to be raised in the new action which as we said we disapprove of. It follows therefore, that in the considered opinion of this court the justice of the case demands that the parties must raise whatever they wish to raise with the court in the earlier action No 307. We allow this appeal. Not only do we quash the injunctions which were granted, we quash the whole of the new action 1995/HN/1394. The parties as we have already said should feel free to return to the court in the earlier action and do whatever needs to be done in this earlier action. The costs will abide the event of the other action.

Appeal Allowed