Judgment Clementina Banda
Judgment Clementina Banda
BETWEEN:
AND
Before the Hon. Mr. Justice Dr. P. Matibini, SC, this 9th day of September, 2011.
For the appellants: Mr.V. Kabonga of Messrs Paul Pandola Banda and Company.
For the respondent: Mr. K. Phiri, Senior Legal Aid Counsel with Legal Aid Board.
JUDGMENT
Cases referred to:
English cases
Zambian cases
1. Diamond v The Standard Bank of South Africa Limited (Executor) (1965) Z.R. 61.
2. Nkhata and Others v Attorney General (1966) Z.R. 124.
3. Kenmuir v Hattingh (1974) Z.R. 162.
4. Sithole v State Lotteries Board (1975) Z.R. 106.
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5. Mwimbu v Habeenzu (1977) Z.R. 111.
6. Mususu Kalenga Building Limited and Another v Richman’s Money Lenders
Enterprise (1999) Z.R. 27.
1. John Mc Ghee QC, Snells Equity, (Thomson Reuters (Legal) Limited, 2008).
2. Hodge M. Malek, Phipson on Evidence, Seventeenth Edition, (Thomson Reuters
(Legal) Limited 2010).
3. Jill Martin, Hanbury and Martin Modern Equity, Fifteenth Edition, (Sweet and
Maxwell 1997).
4. Fleming, The Law of Torts, 3rd Edition (Halstead Press Sydney, 1965).
5. Odgers, Principles of Pleading and Practice, (Stevens and Sons London, 1971).
BACKGROUND
In this appeal I will refer to the respondent as the plaintiff, and the 1st and 2nd
appellants as the 1st and 2nd defendants respectively, because these were their
designations in the Court below. This matter was commenced on 14 th April,
2009, by the plaintiff in the Subordinate Court of the First Class for the Lusaka
District. The matter was commenced by way of writ of summons. The plaintiff’s
claims were for the following:
(a) Possession of the house;
(b) An order for interim injunction directed to the defendants that they be
evicted;
(c) Costs; and
(d) And any remedy that the Court may deem fit.
According to the record of appeal before me, the defendants did not enter any
appearance, or indeed file any defences.
TRIAL
Be that as it may, the trial of this matter commenced on 10 th September, 2009.
The plaintiff; Boniface Mudimba, was the first person to testify. And i will
continue to refer to him as PW1. PW1 testified that on 24 th February, 2003, he
bought the plot in question from the Movement for Multi Party Democracy
(MMD) Constituency Committee, at a price of K 500, 000=00. Following the
purchase, in the early part of 2006, PW1 commenced constructing a house on
the plot. Initially PW1 built a two roomed house. PW1 completed constructing
the house in the early part of 2008, albeit, the windows and doors were not
installed. Thereafter, the structure remained unoccupied.
When PW1 eventually visited the site, he found two bricklayers on site. The
window frames and door frames were also on site; although they had not yet
been installed. The bricklayers informed PW1, that they had been engaged to
install the window frames and door frames by the 2nd defendant. PW1
instructed the bricklayers not to install the window frames, and door frames
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because he was the owner of the property. After issuing these instructions to
the brick layers, PW1 returned to Mazabuka. PW 1 stayed in Mazabuka for a
period of five days. Subsequently, when PW1 returned to Lusaka, he found that
the window frames and door frames had been installed. PW1 also found a
caretaker in occupation of the property. Upon been approached by PW1, the
caretaker volunteered the telephone number for the 2nd defendant.
Thus PW1 contacted the 2nd defendant and asked him to meet him so that he
could explain to him why he had installed the window frames and door frames,
on his property. The 2nd defendant is said to have retorted that: “he did not
care,” because he had just bought the property from Clementine Banda; the 1 st
defendant. PW1 insisted that he wanted to meet the 2nd defendant. Eventually,
the 2nd defendant agreed to meet PW1. The 2nd defendant showed PW1 a letter
confirming the sell of the property by the 1st defendant to him. It was thereafter
agreed that the trio, (PW1, the 1st defendant, and the 2nd defendant), should
meet. When the trio met, they decided to approach the Council Office in
Kanyama for assistance in resolving the matter. The trio, accompanied by
Council officials proceeded to inspect the site. After the inspection, it was
decided that the matter should be referred to Civic Centre.
PW1 further testified as follows: that on 5th July, 2009, he went to Civic Centre.
After his visit to the Civic Centre, he was accompanied by council officials from
Civic Centre to the site again. After he showed the Council officials
documentary evidence showing that he was the owner of the property, he was
advised by the Council officials to sue the defendants. Hence the action in the
Court below.
PW1 called one witness; Hellen Nkandu Jere. I will continue to refer to her as
PW 2. PW2 is a social worker employed by the Lusaka City Council. PW2 is
based at Kanyama. PW2 testified as follows: PW1 was referred to him by his
supervisor at Civic Centre, a Mr. Phiri. She was requested to investigate the
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dispute surrounding the property in issue. After she conducted the
investigations, she found two different houses with two different numbers. One
relates to a big house, and is numbered 27/13. The other is a small house, and
is numbered 27/12. The two properties are separate. And they also have
separate occupancy licences. The ground rates are also received separately.
During cross-examination by the 1st defendant, PW2 reiterated that house
number 27/13 refers to a big house, and house number 27/12 refers to the
small house.
The defence was opened by Clementina Banda; the 1 st defendant. And I will
continue to refer to her as the 1st defendant. The 1st defendant is a personal
secretary at the National Housing Authority. The 1 st defendant testified as
follows: that she bought plot number 27/12 sometime in 1997, from a Mr.
Mugala. The plot measured 30 x 40 metres. She built a three bedroomed
property up to window level. Sometime in 2005, the person who was contracted
to build the property for her, informed her that she had been summoned by the
Chairman of the area. The reason why the she was summoned, was to make
him aware that the area had been legalised and therefore was urged to go to
Civic Centre to settle the ground rates. She went to Civic Centre and presented
the Land Record Card given to him by the vendor. At Civic Centre, the Land
Record Card was not accepted. And she was advised to go to Kanyama to
collect the number for the property. At the Council office in Kanyama, she was
advised that the plot number for her property is 27/12. Whilst at the Council
office in Kanyama, she settled the sum of K 5, 000=00; a levy payable by
residents in Kanyama. Whilst still at Civic Centre, she paid the sum of K 100,
00=00, as ground rates. Thereafter, she took the receipt issued at Civic Centre
to the Council office in Kanyama to enable the Council officials register her for
the purpose of paying ground rates.
The 1st defendant further testified that in the early part of 2007, she decided to
sell her plot. Thus in the company of two estate agents she went to the site. To
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her utter surprise, she found that her house had been demolished, and
someone was constructing on the plot. After that discovery, she left her
telephone number with her neighbours, and requested them to pass on her
telephone number to whoever was constructing on her plot with a message that
he should contact her. This was to no avail. She then decided to put up a
notice on the plot stating that whoever is constructing should stop. On the
same notice she indicated her telephone number.
Shortly after she put the notice on the plot, she was contacted by a person by
the name of Chris who enquired why she had put up the notice inviting the
person concerned to come to the plot with all the relevant documents showing
how that person acquired the plot. Chris informed her that the owner of the
plot died. She asked Chris why despite the notices, he had continued to build.
Chris replied that that is the way plots are acquired in the area. And was
advised to continue building by the plaintiff. Chris also informed her that the
plot was sold to him by MMD cadres, under the pretext that the owner had
died. She requested Chris to direct her to the person who sold to him the plot.
Eventually, the Chairman informed her that it was the plaintiff who sold the
plot to Chris and used the money personally. The Chairman requested him to
be lenient with Chris, and allow him to continue building. Further, the 1 st
defendant testified that the Chairman suggested that Chris should compensate
her. She spurned the offer. And requested Chris to reconstruct what he had
destroyed. Chris pleaded with her that she should sell the plot to him since she
in any event intended to sell the plot. Eventually, she relented, and gave Chris
six months within which to pay for the plot. Later, she learnt that Chris had
been refunded by the plaintiff half of the amount, Chris had paid to the
plaintiff. Thus when she asked Chris whether he was still interested in buying
the plot, Chris told her that he could go ahead and sell the plot to anyone.
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At that juncture, she requested some of his colleagues from her office to go and
clear the area for her. It was at that point that she was informed that the
plaintiff was harassing them, and alleging that the plot was his. She then
decided to meet the plaintiff. Initially, the plaintiff refused to meet her. Later
on, she went to Kanyama to have an audience with the plaintiff.
Subsequently, she also decided to erect a notice stating that the property was
for sell. As a result, Emmanuel Nyanje; the 2nd defendant expressed interest in
the plot. Since the 2nd defendant was interested, she decided to sell the
property to the 2nd defendant; and eventually transferred the plot to the 2nd
defendant.
After the acquisition, the 2nd defendant employed caretakers to secure the
property. It is then that the plaintiff started harassing the caretakers. As a
result, the 2nd defendant contacted the 1st defendant and requested her to
intervene. The 1st defendant requested the plaintiff to contact her. The 1st
defendant testified that the plaintiff did not bother to contact her. The 1st
defendant then decided to go to Kanyama with the 2 nd defendant. When the 1st
defendant met the plaintiff, and the chairman, the 1st defendant was informed
that the property belonged to the plaintiff because it had been repossessed
from her. The 1st defendant testified that the plaintiff and the chairman
pleaded that they should reach a compromise. She however decided to report
the matter to Kanyama Police.
The plaintiff was summoned to the police station. The plaintiff was
accompanied to the police station by the Chairman. At the police station, the
plaintiff and the Chairman confirmed that a colleague of theirs, who had since
died, is the one who sold the plot to the plaintiff. And that the plaintiff came on
to the site with an occupancy licence for plot 27/13. Further, the plaintiff
confirmed that he is the one who was constructing on the plot. Furthermore,
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the plaintiff informed the police officer that he had contracted Chris as his
builder.
Since the plaintiff and herself had documentation evidencing ownership, the
police officer decided to refer the plaintiff and herself to the Council office in
Kanyama. Officials in Kanyama confirmed that the plot was the 1st defendant’s.
The confirmation by the Council was also reinforced by information gathered
from neighbours. The 1st defendant testified that the plaintiff and herself were
then referred to the Civic Centre to verify whether or not the documents in
possession of the plaintiff were genuine. She testified that he did not go to the
Council with the plaintiff. Instead, the 1st defendant was served with a Local
Court summons. At the conclusion of the trial in the Local Court, the plaintiff
lost the case.
The 1st defendant testified under cross examination by the plaintiff that that
when her house was demolished, she reported the matter to the police station
at Kanyama. The police officers advised her to contact the person who had
demolished the house. The police officers further advised her that if she had
any difficulties in locating the person who demolished the house, she should
revert to the police officers.
The 1st defendant also testified that she believed the account by Chris. Further,
she maintained that her plot number was 27/12. And the number 27/12 was
written on the building when she bought the plot. She maintained that plot
number 27/13 does not in fact exist.
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The second witness for the defence was Emmanuel Nyanje; the 2 nd defendant;
The 2nd defendant testified that sometime in June, 2008, he applied for a loan
from the Pension Board to purchase a house. Whilst he was searching for a
house to purchase, he met a Mr. Phiri who informed him that there was a
house available in Kanyama. The following, day he went with Mr. Phiri to
Kanyama, and was shown a house on which it was written, “House for Sale.”
Alongside the inscription; “House for Sale,” was a mobile telephone number.
The house was incomplete.
After he was shown the house by Mr. Phiri, he enquired from a teacher in the
neighbourhood who the owner of the house was. He was informed that the
house belonged to the 1st defendant, and that she was also the owner of the
mobile phone number depicted on the wall. He then decided to contact the 1st
defendant. When he contacted the 1st defendant, he was advised to meet her
the following day at her work place. The following day, he went to her work
place. When he met her, she confirmed that the house in question was hers,
and that she had documents to prove her ownership of the property. He
expressed interest in the property and requested for a copy of certificate of title
for him to present to the Pensions Board. The parties also agreed on a
purchase price of K 25 million. The 2nd defendant took the documents
evidencing ownership to the property, to the Pensions Board. The Pensions
Board in turn wrote to the Civic Centre to confirm whether or not the property
belonged to the 1st defendant.
After the 2nd defendant paid for the property, he took some workers to the site
to work on the property. The workers were on site for three days. After the third
day, the 2nd defendant received a telephone call from his workers that the
plaintiff was claiming that the property in question was his. He advised his
workers to ignore the plaintiff because he was a party cadre. However, the
plaintiff persisted. He then advised his workers that the plaintiff should be
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given his number. Eventually, the plaintiff was given the 2nd defendant’s
number. And the plaintiff contacted the 2nd defendant. When the plaintiff
contacted the 2nd defendant, he claimed that the property was his. The 2nd
defendant countered that the property was his, as he had bought it from the 1st
defendant. In view of the fact that the plaintiff persisted in his claim, he
decided to meet the plaintiff in person.
During the meeting with the plaintiff, the plaintiff persisted in his claim that
the property was his. The plaintiff claimed that he had an occupancy licence to
the property. The plaintiff produced an occupancy licence registered in his
name, and has plot number 27/13 endorsed on it. Yet the wall of the property
in dispute still had plot number 27/12 inscribed on it. After the encounter with
the plaintiff, the 2nd defendant then decided to give the plaintiff, the 1st
defendant’s number. The plaintiff refused to accept the number. The 2nd
defendant then decided to call the 1st defendant himself. The 1st defendant
agreed to meet with the 2nd defendant the following Saturday.
The following Saturday, the 1st and the 2nd defendants, met with the plaintiff in
the presence of the Chairman. During that meeting, the Chairman confirmed
the following: that the owner of the property was the 1st defendant. The 1st
defendant had developed property up to window level. The Chairman confirmed
that they repossessed the plot and sold it to another person. The chairman
informed the meeting that he repossessed and resold the property because he
was responsible for allocating the plots in the area. This was done in concert
with the plaintiff.
The 2nd and the 1st defendants did not accept the explanation given by the
Chairman and the plaintiff. Thus the duo; (the 1st and 2nd defendant), decided
to report the matter to the police. At the police station, both the plaintiff and
the 2nd defendant produced evidence of ownership of the property. The police
officers decided to refer the plaintiff, and the 2nd defendant to Civic Centre.
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Thus he arranged with the 1st defendant to go to Civic Centre. The plaintiff was
unable to accompany them, because he said he was busy.
At the Civic Centre, the 2nd defendant testified that he conducted a search on
plot 27/13. There were no entries on plot 27/13. A search on plot 27/12,
revealed that the property was registered in the name of the 2 nd defendant.
Later, the 2nd defendant was sued in the Local Court, and judgment was
entered in his favour. After the plaintiff lost the case in the Local Court, he
sued the 2nd defendant again. The 2nd defendant maintained that plot 27/13
and 27/12 is the same plot.
The first witness for the 2nd defendant was Mabuko Kalima. And I will continue
to refer to him as DW1. DW1 is a Legal Assistant with the Lusaka City Council.
And is based at Civic Centre. DW 1 testified that he has records for plot 12/27.
And plot 12/27 was registered in favour of the 1 st defendant sometime in 2007.
The registration was done at the Council office in Kanyama. Further, DW1
testified that he has not come across plot 27/13. And does not know whether
or not it exists.
The second witness for the 2nd defendant was Noble Kalima Kwenda; i will
continue to refer to her as DW2. DW2 is a Field Team Leader responsible for
Kanyama, Chibolya, and John Laing areas. According to DW2, both plot 27/12
and 27/13 exist in the records. 27/12 is registered in favour of the 1 st
defendant. And 27/13 is registered in favour of the plaintiff. DW2 also testified
that officials at Civic Centre omitted to register plot 27/13.
JUDGMENT
The judgment in this matter was delivered on 31 st March, 2010. After reciting
the testimony of the parties, and the witnesses, the learned trial magistrate
found the following evidence to be common cause. First, that both parties claim
to have plots in Kanyama, and produced documentary evidence to that effect.
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Second, that plot 27/12 belongs to the 1 st defendant, and plot 27/13 belongs
to the plaintiff. The issue that fell for determination in the considered view of
the learned trial magistrate was whether or not plot 21/12 and 27/13, is one
plot or are two separate plots.
The learned trial magistrate went on to observe that from the evidence of the
plaintiff and 2nd defendant, it is not in dispute that both have documentation in
relation to their respective properties. However, the learned trial magistrate
noted that the 2nd defendant maintained that plot 27/13 did not exist as plot
27/12. And 27/13 is one plot under the number 27/12.
The learned trial magistrate further observed that the 2 nd defendant expressed
ignorance as to whether 27/13 did in fact exist. The learned trial magistrate
went on to observe that having seen the documents produced by both parties,
he concluded that plot 27/12 and 27/13 are separate plots, owned by different
individuals. The learned trial magistrate held that plot 27/12 belonged to the
1st defendant and plot 27/13 belongs to the plaintiff. The learned trial
magistrate then made the following observation albeit obiter dicta. Wit;
“The law in Zambia under the Lands and Deeds Registry Act does support this
finding as the law provides that title is conclusive evidence of ownership unless
the contrary is proved. As the title of the plaintiff has not being challenged, i find
the same conclusive evidence of ownership of land by the plaintiff.”
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GROUNDS OF APPEAL
The defendants were dissatisfied with the judgment of the learned trial
magistrate, and filed the following grounds of appeal:
1. The Court below erred in that it did not consider the 1 st defendant’s
evidence properly, thereby failing to resolve the matters in controversy;
2. The plaintiff changed positions about the plot when during proceedings
in the Court below he introduced what was not pleaded before to contend
that there were two plots; and
3. Further grounds as may be filed later.
1. The Court below erred in law and fact by trying the action afresh when
the respondent who had lost his case at the Local Court did not appeal
against the decision of the Local Court either within the time limited, or
outside the time limited after having been informed of the right to appeal
within 30 days but failed to do so and instead commenced a fresh action
by writ of summons and statement of claim filed on 14 th April, 2009. A
copy of the writ of summons and statement of claim are attached; and
2. The Court below erred in law and fact by holding that there are two plots
27/12 and 27/13, and that the plaintiff has title to the same land the 1 st
defendant had owned before the plaintiff obtained title;
HEADS OF ARGUMENTS
The two grounds of appeal were addressed in detail in the heads of arguments
filed by Mr. Kabonga. Under the first ground of appeal, Mr. Kabonga argued
that a Court judgment that is not appealed against or set aside by a High Court
remains in force. In aid of this submission, Mr. Kabonga referred me to a
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passage from Odgers, Principles of Pleading and Practice, (1971) (Stevens and
Sons, London) at pages 306 as follows:
“A judgment finally disposes of all controversy as to matters in issue in the
action. The rights of the parties as to any such matter depend in future wholly on
the judgment. As long as that judgment stands, none of the issues raised in the
action can be re-tried. The original cause of action is gone, transit in rem
judicutum. It is merged in the judgment. This result is peculiar to a judgment; a
mere stay of proceedings or the acceptance of money paid into Court has not the
same effect.”
Thus Mr. Kabonga argued that the commencement of the fresh action by the
plaintiff in the Court below was a nullity. Still under the first ground of appeal,
Mr. Kabonga argued that the commencement of the fresh action by the plaintiff
was an abuse of the Court process. Mr. Kabonga quoted from Fleming, The Law
of Torts, 3rd Edition, (Halstead Press, Sydney, 1965) at pages 591 – 592, the
following passage:
“The essential elements of abuse of process are: first, a collateral or improper
purpose such as extortion, and second, a definite action, or threat in furtherance
of a purpose not legitimate in the use of the process. Some such overt conduct is
essential because there is clearly no liability when the defendant merely employs
regular process to its proper conclusion all but with bad intentions.”
Mr. Kabonga submitted that a failure to appeal by the plaintiff against the
judgment of the Local Court constituted an improper motive on the plaintiff’s
part. Mr. Kabonga contends that the plaintiff had not right to commence a
fresh action in a matter that was decided in favour of the 1st defendant.
As regards the second ground of appeal, Mr. Kabonga argued that the learned
magistrate failed to resolve the issue of who truly owned the land in dispute.
Mr. Kabonga submitted that the 1st defendant categorically denied that there
were two plots; 27/12/ and 27/13. Mr. Kabonga maintains that there was only
one plot in issue. Namely, plot 27/12, which belonged to the 1 st defendant. Mr.
Kabongo suggested that plot 27/13 might have been created through the
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intervention of the plaintiff and behind the back of the 1st defendant. To
support this suggestion, Mr. Kabonga referred to the following illustrations;
1. the plaintiff’s name does not appear in the records (see memorandum
02/04/09, from Kanyama);
2. the ground rent Registration Form dated 22/03/07 and marked BM 11
in the record of appeal is in conflict with the memorandum dated
02/04/09. In that the memorandum of 02/04/09 denied that there was
a name against plot number 27/13. Mrs. Jere is the author of the
memorandum dated 02/04/09; and
3. the 1st defendant purchased her plot in 1997. While the plaintiff obtained
title of the same plot on 24 th February 2003; seven years later.
Mr. Kabonga argued that the 1st and 2nd defendant’s title supercedes the
plaintiff’s title. Mr. Kabongo further argued that the learned trial magistrate
should have been guided by the maxim of equity which stipulates that “first in
time, is the first in right.” Mr. Kabonga pressed that where there are equal
equities, the first in time prevails, qui prior est tempore potior est jure (meaning;
He who is first in time has the strongest claim in law.”)
Mr. Kabonga argued that in this case there is really no dispute about whose
interest ranks in priority. Mr. Kabonga submitted that the 1st defendant has
priority over the plaintiff. Further, Mr. Kabonga argued that the 1 st defendant’s
priority was passed on to the 2nd defendant, who in any case purchased the
plot as a bona fide purchase for value without notice. These competing interests,
Mr. Kabonga maintains were not properly considered by the learned trial
magistrate. In short, Mr. Kabonga submitted that the plaintiff has no superior
title to the plot in question. Rather, it is the 1st and 2nd defendants who have
prior interest and title to the plot. Thus ultimately, Mr. Kabonga urged me to
set aside the learned trial magistrate’s order because it was misdirected both in
law and in fact.
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Mr. Phiri on behalf of the respondent filed the heads of argument on 9th
November, 2010. Mr. Phiri submitted that the learned trial magistrate was on
firm ground when he entertained a fresh action initiated by the plaintiff
because it was an entirely different matter from the one before the Local Court.
Mr. Phiri pointed out that parties before the learned trial magistrate were the
plaintiff and the 2nd defendant. And the claim was that the 2nd defendant
should vacate the property built by the plaintiff on plot 27/13.
Mr. Phiri submitted that the claim in this case is in respect of plot 27/13, as
opposed to plot 27/12. Mr. Phiri submitted that the learned trial magistrate
made it clear that the two properties are different. Namely, that plot 27/13 is
for the plaintiff and plot 27/12 is for the defendants. Furthermore, Mr. Phiri
submitted that the 1st defendant sold the property in dispute to the 2nd
defendant which she did not build.
Mr. Phiri contends that the Local Court dismissed the matter on the ground
that the plaintiff had sued a wrong party. As a result, the plaintiff had an
option of suing the right party. Hence the suit against the 1 st defendant.
Further, Mr. Phiri argued that the Local Court is not a Court of record. And
therefore, the learned trial magistrate has the power of revision over the Local
Court and or from the Local Court de novo. That is to say, starting the matter
afresh. Thus Mr. Phiri urged that the learned trial magistrate had jurisdiction
to try the matter de novo.
In relation to the second ground of appeal, Mr. Phiri argued that the learned
trial magistrate was on firm ground when he held that they are two separate
plots. Namely, plots 27/12 and 27/13. Mr. Phiri contends that the two plots
are evidenced by Land Record Cards. Mr. Phiri endorsed the submission by Mr.
Kabonga that the first in time has the strongest claim in law. Mr. Phiri
maintains that the plaintiff was first because he obtained his title on 14 th June,
2007. While the 1st defendant obtained hers on 1st November, 2007.
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THE LAW
The provisions of section 58 (2) of the Local Courts Act were the subject of
interpretation by the Supreme Court in the case of Mwiimbu v Habeenzu (1977)
Z.R. 111. The facts of the case were that the appellant sued the respondent in
the Local Court for damages for the impregnation by the respondent of the
appellant’s daughter. The respondent was ordered to pay K 200 damages, and
his appeal to the magistrate’s Court was unsuccessful save that damages were
reduced on further appeal to the High Court. The appeal was allowed on the
basis that the Court below had not properly construed a vital piece of evidence
given by the appellant. The magistrate had not exercised its power to re-hear
the evidence. In delivering the judgement of the Supreme Court, Gardner JS,
made the following observation at page 113:
“It is unfortunate that the magistrate who heard the appeal from the Court saw
fit to dispense with a rehearing of the evidence.”
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Gardner JS reproduced the provisions of section 58 (2) of the Local Courts Act.
And he then went on to observe as follows at page 113:
“The terms of this section are directory, and mean that in general the magistrate
should rehear all the evidence. In special circumstances, a magistrate may
exercise his discretion to dispense with a rehearing for example, where all or part
of the evidence consists of admitted facts, or where the evidence of one or more
witnesses is purely formal. In any case, where the question of credibility of
witnesses is involved their evidence should be taken afresh.”
Thus appeals from the Local Courts are heard de novo by magistrates in the
Subordinate Courts. A re-hearing is especially necessary where the credibility
of the witnesses is in issue. Hearing of the appeals de novo can only be
dispensed with, where the evidence consists of admitted facts or where the
evidence of one, or more witnesses is purely formal. That is, not controversial.
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The learned authors of Phipson on Evidence (supra) conclude as follows in
paragraph 43-24 at page 1433:
“The principle that estoppel arise from a judgment in previous litigation between
the same parties applies in general to all civil litigation, including arbitrations,
and civil proceedings in Courts of summary jurisdiction. A cause of action
estoppel operates to prevent a party relitigating a claim he has lost, even if he is
now able to show that the earlier decision was wrong.”
WAIVER
There are two separate doctrines which are often referred to as “Waiver.” These
two doctrines are also associated with the doctrine of estoppel. By the way, in
modern law, the term estoppel is used to describe a variety of devices, some of
which merely have the effect to precluding a party from denying a particular
fact or assumption. (See Phipson on Evidence, (supra) paragraph 5 – 01, at
page 100).
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These two types of waiver are distinguished by the terms “waiver by election,”
and “equitable waiver.” According to the learned authors of Phipson on
Evidence, (paragraph 5 – 33, at p. 130), a “waiver by election” is described in
the following terms: a waiver by election occurs when a party acts to the
knowledge of another party in that is consistent with choosing to rely on one or
two alternative, and mutually exclusive rights. The effect of such an election is
that the party will be precluded from asserting the other right. However, a
party will only be held to such an election if he knew, or had the means of
knowing the existence of the alternative rights. (See Peyman v Lanjani [1985]
Ch 457).
At this juncture, I will now pass to apply the law to the first the question or
issue. Namely, was the plaintiff barred from starting a fresh action in the
Subordinate Court, having lost the action in the Local Court. First, it is trite
law that any interested party who is aggrieved by any judgment, order, or
decision of the Local Court may appeal to the Subordinate Court. And
whenever such an appeal is made, the matter is heard de novo, or afresh,
unless of course there exists good, and sufficient reasons to dispense with a
hearing. In this particular case, it is contended by the defendants that the
earlier decision by the respondent in the Local Court was not appealed against.
Instead, the respondent commenced a fresh action in the Subordinate Court.
The plaintiff concedes that the Local Court dismissed the matter on the ground
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that the plaintiff sued a wrong party. Consequently, the plaintiff elected instead
to sue the right party in the Subordinate Court. My finding on this point is that
the earlier decision by the Local Court was not appealed against. And the
plaintiff proceeded to initiate fresh proceedings.
In any event the objection by the defendants should have been made before the
Subordinate Court, because when the plaintiff initiated the fresh action, the
defendants were already aware____, at least according to their claim___, that
the same cause of action by the same parties had already been litigated upon
before the Local Court. Thus on the basis of the doctrine of waiver, the
defendants are precluded from asserting their rights. Furthermore, since the
defendants did not raise the issue of res judicata estoppel before the
Subordinate Court, they are prevented from raising it on appeal. In stating this
proposition, I am fortified by the decision of the Supreme Court in the case of
Mususu Kalenga Building Limited and Another v Richman’s Money Lenders
Enterprise (1999) Z.R. 27. In the Mususu Kalenga case, the Supreme Court said
that where an issue was not raised in the Court below, it is not competent for a
party to raise it for the first time on appeal.
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EQUITY
The second, and central question in this appeal is simply this: who is entitled
to own the property in dispute: in answering this question I will provide the
backcloth of the germane law. It is instructive to note that in terms of section
13 of the High Court Act, I am required to administer law, and equity
concurrently. In this particular case, the resolution of the dispute at hand,
largely imports principles of equity.
John Mc Ghee Q.C, in his book entitled Snells Equity, (Thomson Reuters
(Legal) Limited 2008), states in paragraph 4 – 03, at page 56, that at law, as in
equity, the basic rule is that estates, and interests primarily rank in the order
in which they are created. In equity, the result is expressed more directly in
terms of temporal priority. The maxim is this: “qui prior est tempore potior est
jure.” That is, “he who is earlier in time is stronger in law.” The learned author
of Snells Equity, (supra), goes on to state in the same paragraph 4 – 03, that,
accordingly, where there are two competing equitable interests, the general rule
of equity is that the person whose equity attached to the property first will be
entitled to priority over the other. Where the equities are equal, and neither
claimant has the legal estate, the first in time prevails, since: “every
conveyance of an equitable interest is an innocent conveyance, that is to say, the
grant of a person entitled merely in equity possess only that which he is justly
entitled to and no more.”
Jill Martin, in his book entitled, Hanbury, and Martin, Modern Equity, (Sweet
and Maxwell Limited, 1997), puts the point in this way at page 27:
“Thus prior equitable interest in land can only be defeated by a bona fide
purchaser, and without notice, then the equities are equal, and his legal estate
prevails. If he took with notice, the position is otherwise, as the equities are not
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equal. If he does not acquire a legal estate, then the first in time, i.e the prior
equitable interest prevails, as equitable interests rank in order of creation.”
The onus lay on the purchaser to prove that he was a bona fide purchaser for
value, and also that he took without notice of the equitable interest.”
How then are the equities to be assessed and determined, in this matter? The
answer to this question is that it is a question of evidence. And further since
this not a trial of the action, but rather an appeal, it is proper and inevitable, to
consider the principles that inform the evaluation of evidence on appeal.
In addition to the Nkhata case, there is also a line of other Zambian cases that
have variously defined the appellate Court’s concerns, and jurisdiction when
evaluating the findings of fact, of trial Courts. The first case is the case of
Diamond v Standard Bank of South Africa Limited (Executor) and Others (1965)
Z.R. 61. This was an appeal before the Court of Appeal, in respect of an order of
the trial Court dismissing an application by the appellant under the
Inheritance (Family Provision) Act, 1938, for reasonable provision for
maintenance to be made out of the net estate of the deceased; Sidney Diamond.
The judgment of the Court of Appeal was delivered by Charles J. In the course
of the judgment, the Court of Appeal made the following observation at the
page 66:
The second case to be considered is the case of Kenmuir v Hattingh (1974) Z.R.
162. The facts of the case are that the appellant appealed from a decision of the
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High Court dismissing his claim for damages arising out of an accident. His
appeal was based on the ground that the trial judge made no findings as to
distance, or other important issues raised by the evidence, and that his finding
that the plaintiff was solely to blame for the accident was against the weight of
evidence. The respondent while conceding that the trial judge made no
findings on important issues, submitted that there was in fact sufficient on
record to enable the Court to make its own findings of fact, and to determine
the issue. In a judgment delivered by the then Deputy Chief Justice Baron, the
Supreme Court held as follows at page 163:
“An appeal from a decision of a judge sitting alone is by way of rehearing on the
record, and the appellate Court can make the necessary findings of facts, if the
findings were conclusions based on facts which were common cause or, on items
of real evidence when the appellate Court is in as good a position as the trial
Court.”
The third case that will be referred to, is the case of Sithole v State Lotteries
Board (1975) Z.R. 106. The facts of the case were that the appellant appealed
against a decision of the High Court refusing a declaration that the respondent
wrongfully refused to pay the appellant the sum of K 35, 500=00, which the
appellant claimed he won at a Pick a Lot draw held on the 2nd September,
1977. In a judgment delivered on behalf of the Supreme Court, Deputy Chief
Justice Baron, as was then, observed as follows at page 115:
“An appeal to this Court from judge sitting alone is a re-hearing on documents,
including the judges notes. This Court is judge of Court.”
“I wish to express my concurrence in the view that on appeals from the decision
of a judge sitting alone without a jury the jurisdiction of the Court of Appeal is
free and unrestricted. The Court has to re-hear, in other words has the same
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rights to give decisions on the issues of the fact, as well as law as the trial
judge.”
In the Sithole case, Baron D.C.J, went on to comment as follows at page 116:
“This is clearly a case which turns on inferences from facts which are not in
doubt; there is no question here of the learned trial judge having made findings
of facts in respect of conflicting stories based on his impressions of the
witnesses; the question for this Court is therefore what is the proper inference to
draw from the findings of fact in paragraphs (e), and (f) referred to above, and in
this regard, since we are in as good a position as the trial Court to draw the
inferences, this Court is at liberty to substitute its own opinion which the trial
Court, might have expressed.”
Thus an appellate Court can make the necessary findings of facts, if the
findings were conclusions based on facts which were common cause, or on
items of real evidence, when the appellate Court is in as good as position as the
trial Court. Where an appellate Court is in as good a position as the trial Court,
it can draw inferences, and is also at liberty to substitute its own opinion with
that of the trial magistrate, or trial judge, as the case may be.
Therefore, the findings of facts of a trial magistrate, or trial judge can only be
disturbed, or interfered with where it is positively demonstrated that: a trial
magistrate, or trial judge erred in accepting the evidence; took into account
some matter which he ought not to have taken into account; or failed to take
into account a matter which he ought to have taken into account; failed to take
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proper advantage of his having seen, and heard the witnesses; or the evidence
which he accepted was palpably not credible.
I will now turn to apply the principles referred to above to this case. The
plaintiff testified that he bought the property in issue on 24 th February, 2003,
from the MMD Constituency Committee at K 500, 000=00. Following the
purchase, he proceeded to construct a two roomed house. Sometime in
July/August, 2008, he was informed that the 2 nd defendant was installing door
frames, and window frames on his property.
The 1st defendant testified as follows: he bought the property number 27/12,
sometime in 1997, from a Mr. Mugala. After the purchase, she constructed a
three bedroomed property up to window level. She regularised ownership of the
property with the Lusaka City Council sometime in 2005. And at the time of
the regularisation, she was told that the property number was 27/12.
Further in 2007, she decided to sell the property in question. Thus in the
company two estate agents she went to the site. To her utter surprise, she
found that her house had been demolised, and someone else was constructing
on the plot. In due course, she discovered that the person who was developing
the plot was a person by the name of Chris. When confronted, Chris claimed
that the plot was sold to him by some MMD cadres. In the course of further
investigations, she came to learn that it is the plaintiff who sold the plot to
Chris. After approaching Chris, the MMD Chairman for the constituency
interceded in the matter. The chairman is said to have pleaded with her, and
persuaded her, to permit Chris to continue with the development. The
chairman suggested in the alternative that Chris should compensate her for
the development. She spurned the offer. Eventually, she elected to offer
property to Chris. And Chris was given six months in which to settle the
purchase price. However, Chris did not settle the purchase price. Instead, she
learnt that Chris had been refunded half of the purchase price by the plaintiff.
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Thus when she enquired from Chris whether he was still interested in the plot,
Chris is said to have told her that he was not, and that she could go ahead and
sell the property. As a result, she sold the property to the 2 nd defendant.
The testimony of the 1st defendant was corroborated by DW1, and DW2. To
recapitulate, DW1, was Mabuko Kalima; a Legal Assistant with the Lusaka City
Council. And DW 2 was Noble Kalima Kwende; a Field Team Leader,
responsible for Kanyama, Chibolya, and John Laing areas. DW1 confirmed that
plot number 12/27 was registered in favour of the 1 st defendant sometime in
2007. He however expressed doubt as to whether plot 27/13 actually exists.
DW2 also confirmed that plot 27/12 is registered in favour of the 1 st defendant.
And plot 27/13 is registered in favour of the plaintiff.
The 2nd defendant confirmed the he purchased the plot in question from the 1 st
defendant. (See memorandum dated 23rd July, 2008, from the Chief Housing
Officer, to the Council Registrar recommending change of ownership from the
1st defendant to the 2nd defendant at page 27 of the Record of Appeal). Before
doing so, he was shown documents depicting the 1 st defendant as owner of plot
12/27. The 2nd defendant also testified that before the Pensions Board
disbursed the loan that enabled him to purchase the property, the Board
enquired from the Lusaka City Council, whether, or not the 1 st defendant
owned the plot in dispute.
From the preceding evidence, the following findings facts can be made from the
undisputed evidence:
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c) The 1st defendant regularised ownership of the property with the Lusaka
City Council sometime in 2005. And the property was numbered as plot
12/27;
d) The ground Rent Registration Form dated 22 nd March, 2007, reflects that
plot 12/27 belongs to the 1st defendant. And plot 13/27 belongs to the
plaintiff. (See page 19, and 35 of the Record of Appeal).
e) The plaintiff holds an Occupancy Licence number 22765 in relation to
plot 13/27 (see page 14 of the Record of Appeal).
f) The 1st defendant was issued an Occupancy Licence number 22368, in
relation to plot 12/27 (see page 26 of the Record of Appeal).
g) DW 1, and DW2 confirmed that plot number 12/27 belongs to the 1st
defendant. And DW2 confirmed that plot 27/13 belongs to the plaintiff;
and
h) The 2nd defendant bought plot 12/27, from the 1st defendant. And at the
time of the purchase, the 1st defendant was in possession of documents
showing that he was registered owner of plot 12/27.
_____________________________
Dr. P. Matibini, SC,
HIGH COURT JUDGE
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