CIVIL PRACTICE – POINT OF LAW OF NON-JOINDER RAISED IN LIMINE – TEST FOR JOINDER RESTATED

CIVIL PRACTICE – POINT OF LAW OF NON-JOINDER RAISED IN LIMINE – TEST FOR JOINDER RESTATED

 The applicant, an adult male lay-litigant, instituted proceedings seeking an eviction order of the fourth to eleventh respondents and ‘any person claiming [occupation] through them’ from an area of land in the Zambezi Region which he alleges belongs to him. The respondents raised a point in limine of non-joinder, contending that the applicant’s failure to join the fourth to eleventh respondents’ family members, whose identities had been made known to the applicant, was fatal to the application. ANGULA DJP considered the matter and held that:

1. The test for non-joinder is that the person to be joined should have a direct interest in the outcome of a suit. In other words, the persons to be joined must have a direct and substantial interest not only in the subject matter of the litigation, but also the outcome of the litigation.
2. The respondents’ family members as occupiers of the land from which an order was sought to evict them have direct and substantial interest not only in the subject matter of the litigation but also in the outcome of the proceedings and therefore ought to have been joined.
3. The applicant’s failure to join the respondents’ family members whose names were made available to him makes the present application liable to be struck from the roll with costs.

Accordingly, the 4^th – 11^th respondents’ point in limine of non-joinder was upheld and the application was struck from the roll with costs. In particular, the Court made the following order:

‘3.           The application is not to be re-enrolled until and unless the persons whose names have been furnished to the applicant by the legal practitioner for the fourth to eleventh respondents as occupiers of the land in respect of which the applicant seeks the eviction and interdict orders against the fourth to eleventh respondents, have been joined and served with the application papers.

4. The applicant is ordered to pay the fourth to eleventh respondents’ costs of this application. Furthermore, the matter is not to be re-enrolled until the applicant has paid the fourth to eleven respondents’ costs of this application.’

Kamwi v Minister of Lands and Resettlement NAHCMD (8 June 2022)