IN THE HIGH FOR ZAMBIA 2013/HP/1600
AT THE PRINCIPAL REGISTRY
HOLDEN AT LUSAKA
(CIVIL JURISDITION)
BETWEEN:
PHILIP STUART WOOD rr-c^A PPLIC A N T
AND
THE ATTORNEY GENERAL 1st RESPONDENT
NATIONAL PENSION SCHEME AUTHORITY 2 nd RESPONDENT
Before the Hon. Mrs. Justice J. Z. Mulongoti, in Chambers
on the 25th day of July 2014
For the PLAINTIFF : Mr. M. Z. Mwandenga, of M.Z. Mwandenga & Co
For the DEFENDANT : Ms. S. Chomba, Assistant Senior State Advocate
RULING
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The Ruling relates to an application by the 1st Respondent for
misjoinder. The application was by summons pursuant to order
15 Rule 2 of the High Court Rules and affidavit in support
deposed by the state advocate Major Nancy Che we Mulenga.
She deposed that the Applicant had not disclosed the course of
action against the 1st Respondent. That the l bt Respondent was
wrongly joined to the proceedings as the 2nd Respondent can sue
and be sued in its own capacity.
Accordingly, an order of the court was sought for a misjoinder
of the 1sl Respondent.
The Plaintiffs filed an affidavit in opposition sworn by the
Plaintiff to the effect that he was a Lawyer by training and that
except where he says otherwise, all the facts deposed to are true
to his own knowledge. And that where in the affidavit he states
that he was informed or advised by a named informant or
advisor of any fact, he verily believes such fact to be true. That
in these proceedings he was challenging inter alia the validity of
Regulation 3 of the National Pension Scheme Authority
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(NAPSA) (Benefits and Eligibility) Regulations 2000, (Statutory
Instrument No. 71 of 2000). That the Statutory Instrument was
made by the Honourable Minister of Labour and that the
Plaintiff believed she did so on behalf of the Government of
which the l sl Respondent (Attorney-General) is the legal
representative. And that the 1st Respondent was sued as the
legal representative of the Government and was the proper party
to represent the Government in these proceedings.
He further deposed that the 2nd Respondent was sued for
payment of lump sum of his benefits pursuant to section 5 of the
NAPSA Act No. 40 of 1996.
That by letter dated 3rd February 2014, his lawyer wrote to the
lsl Respondent stating the reasons why the 1st Respondent has to
be a party per exhibit ‘PSW2’.
The learned state advocate Major Nancy Chewe filed an
affidavit in Reply stating that according to paragraph 8 of the
affidavit in opposition, the Plaintiff was challenging the validity
of Regulation 3 of the NAPSA regulation 2000 (Statutory
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Instrument No. 71 of 2000). That the Plaintiff did not clearly
disclose the cause of action against the Attorney General (1st
Respondent).
At the hearing of the application on 25th June 2014, the learned
Assistant Senior State Advocate, Ms. S. Chomba, relied on the
affidavit in support sworn by her colleague dated 6 March 2014
fh
and the affidavit in reply dated 3rd June 2014, both sworn by the
said Major Nancy Chewe Mulenga. She submitted that the
Plaintiff does not reveal a cause of action against the 1st
Respondent. I thus it be removed from the proceedings. The
plaintiffs counsel, Mr. Mwandenga, opposed the application on
grounds that it was misconceived. He also relied on the affidavit
in opposition. He argued that validity of Statutory Instrument,
which was made by the Minister on behalf of the government
and thus Attorney - General was properly sued to answer on
behalf of the Government regarding the Statutory Instrument
and that the application was not only misconceived but an abuse
of the Court’s process and that it be dismissed with costs to the
Plaintiff.
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The learned Assistant Senior State Advocate in response
reiterated that perusal of the originating process does not
disclose a cause of action against the Attorney-General and that
it was difficult to know what case the 1st Respondent would
meet in court. She submitted in the alternative that the
Applicant could amend process and state clearly what the 1st
Respondent should respond to.
I wish to state from the outset that I am inclined to allow the
application. I agree entirely with the arguments by the V{
Respondent. In addition I wish to add, at the risk of pre empting
the Judgment, that it is trite that where there is a conflict or
inconsistency between the provisions of an Act and Statutory
Instrument or Regulation, the provisions of the Act prevail.
Further, the process of challenging an Act or Regulation is
totally different altogether.
On the facts of this case there is no need for the Attorney
General to be a party as canvassed by the learned Assistant
Senior State Advocate. The 2nd Respondent is an autonomous
body capable of suing and being sued. Accordingly, the 1st
Respondent is removed from the proceedings. I set the 1st day
of October 2014 at 08:30hours for hearing of the main matter.
Costs to be borne by the Plaintiff.
J. Z. MULONGOTI
HIGH COURT JUDGE
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