Allan Shawa v John Mwila and 3 Ors [2019] ZMCA 359 (5 April 2019)

IN THE COURT OF APPEAL HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/8/ 121/2018 APPEAL /98/2018 BETWEEN: ALLAN SI-IAWA AND JOHN MWILA (cid:9) DOREEN CHITUNDU (cid:9) NIZA MWILA (cid:9) 0. BOX 5OO6 Appellant / (cid:9) 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent ANY OTHER PERSONS OCCUPYING HOUSE NO. 3990 (cid:9) CORAM: CHISANGA JP, KONDOLO, SC and MAJULA, JJA On 23rd January, 2019 and 5thApril 2019 For the Appellant: (cid:9) For the 1, 2nd, 3rd & 41h Respondents: (cid:9) Mr. D. Mazumba, Messrs Douglas & Company N/A JUDGMENT CHISANGA, JP delivered the Judgment of the Court Cases referred to: 1. Enesi Banda vs Abigail Mwanza (2011) 3 ZR 238 2. Colgate Palmolive (Z) INC vs Chuka and Others Appeal No. 181 of Finance Bank Zambia Limited & Another vs Simataa Appeal No. 11 of 2017 Phiri vs Tembo (2011)3 ZR 189 Chilufya vs Kangunda (1999) ZR 166 3. 4. 5. 6. Nivel & Mwale vs Mwale, Selected Judgment No 40 of 2018 7. Chikuta vs Chipata Rural Council (19 74) ZR 241 8. New Plast Industries vs Commissioner of Lands and Attorney General SCZ Judgment No 8 of 2001 P. Legislation referred to: 1. Lands and Deeds Registry Act CAP 185 of the Laws of Zambia 2. High Court Rules CAP 27 of the Laws of Zambia 3. Housing (Statutory and Improvement Aras) Act 1974 (Repealed) 4. The Urban and Regional Planning Act No. 3 of 2015 This appeal agitates the decision of the High Court, dismissing the Appellant's claims. The Appellant was Plaintiff in the Court below, in an action commenced by Originating Notice of Motion. He sought Orders for, the removal of the caveat entered on House No. 3990 Chimwemwe Township Kitwe, and for vacant possession of the said property. He equally craved a declaration/ Order that he duly bought the property from the 1St respondent, as well as an Order for costs and any other relief the Court might deem fit. The Originating Notice of Motion was supported by an affidavit sworn by the Appellant. He deposed that in 2014, the 1St Respondent, John Mwila, informed him that he was selling house No. 3990 Chimwemwe, because he was indebted to CETZAM, who were about to dispose of the property. The Appellant was apparently interested in the property, because the evidence is that he went to CETZAM with the 1St respondent, where it was confirmed that the 1St respondent owed that institution. The appellant was shown the title deed for the property, which was in the 1St respondent's name. J2 Thereafter, a contract of sale was executed by the parties. The appellant paid the purchase price, thus enabling the 1st respondent to liquidate his indebtedness to CETZAM. The original title deed was subsequently handed over to the appellant. Thereafter, the 18t Respondent wrote a letter to the Kitwe City Council concerning the transaction. After all the payments had been made, the appellant cleared the water bills. However, when he attempted to register the assignment, he discovered that the 2nd and 3rd respondents had placed a caveat on the said property. He commenced the action as a result. When the matter was called for hearing on the 17th October 2016, Mr. Mazumba, learned counsel for the appellant, informed the court that no affidavit in opposition had been filed, and that he would oppose production of documents since the defence had had ample time to file the documents in Court. Learned counsel appearing for the respondents, Mr. Masengu, applied that the matter be heard viva voce. He explained that he had not filed any documents because he had been indisposed, having undergone an operation, resuming duties only that week. The learned judge ordered that she would hear the matter and that at the right time, the applicant could object to production of the documents. She also stated that a wholly discontinued matter could be restored. J3 Pursuant to that Order, the appellant proceeded to give evidence. He placed reliance on the affidavit in support, and added that he at one time met Mr. John Mwila and his wife. He dawdled, and Mr. Mwila re-approached him, saying he had urgent need for the money. They went to CETZAM and he learned that John Mwila owed that institution K6,000. Thereafter, John Mwila went with the appellant's witness to settle the former's indebtedness. After the payment had been made, the applicant was given the title deed. He went on to narrate that the parties had agreed that vacant possession would be rendered on 10th February 2015. Later however, the appellant was requested to extend the respondent's stay up to the month end. On 28th February 2015, the appellant rang the 1St respondent, but both he and his wife had switched off their phones. When he went to the house, he was informed that both had travelled on business. The appellant referred to the letter of sale addressed to the Director Legal Department, at Kitwe City Council. He equally drew the Court's attention to the receipt for the water bills he had settled, as well as a Zambia Revenue Authority receipt for change of ownership. He also referred to the deposit slips for the balance of the purchase price that he had deposited into Mr. John Mwila's account. He testified that after receiving the last payment, the latter had switched off his phones. J4 The appellant managed to call the wife who promised to see him immediately she returned from business. She did not call him. He therefore decided to sue. He explained that he had the original certificate of title, and that only John Mwila's name was on the title deed, and not that of his wife. When cross examined, he said he had left the certificate of title at Kitwe City Council, but did not know who had done the ownership transfer. He explained that he contracted a Mr. Mutale, an agent of Kitwe City Council to do the work for him. He was allowed to bring the original title deed he had left outside by the trial judge. He testified that the certificate of title did not bear the name of Allan Shawa. The appellant called a witness who largely testified in the same vein as he had done. He however stated that when he escorted the appellant to see John Mwila, the latter's wife was not at home. The witness went on to state that when they checked on the file at the Kitwe City Council, they found no documentation pertaining to the transaction. The third witness was Geoffrey Mutale Mulenga, an employee of RSK Banda and Company, the estate agents who were approached by John Mwila and Allan Shawa for help to change ownership of the property. He informed the court that the contract of sale was drawn by the estate agents. Mr. Banda later gave a title deed to the witness, in the name of Allan Shawa. It was however J5 later learnt that the title deed had not been changed, and that Allan Shawa's name had simply been typed on the document. This was only discovered after Mr. Banda had died. Another witness was called by the appellant, whose evidence was that she witnessed payment of K70 million (unrebased) by him to the 1St respondent. The 2nd respondent also testified. She informed the Court that the house in issue belonged to her and John Mwila, her husband. She bought the house from the man who had failed to pay for it. She gave him (her husband) the purchase money, but noticed that the title deed only bore his name. When she enquired why this was so, he informed her that two names could not be inserted on the title deed. The 2nd respondent informed the Court that she had no inkling that her husband had borrowed funds from CETZAM. She only discovered this at the point of eviction, because her husband had failed to liquidate the loan. She was advised by CETZAM to start paying towards settlement of the loan. The sum of K5,000 was still outstanding. She testified that a person who said he was Allan Shawa called her, informing her that her stay in the house had come to an end. She went on to explain that Mr. Mwila had deserted home and she last saw him on 28th February 2015. J6 The 3rd respondent also testified. He informed the Court that Allan Shawa went to ask for water bills for the house. When he asked him why he wanted them, his response was that he worked for Nkana Water and that his father had gone there, and he wanted receipts. The 3rd respondent told Mr. Shawa to come later, after his father had returned. The 3rd respondent was surprised to learn that the house had been sold. He placed a caveat on the house, because as a family, they had nowhere to stay. He last spoke to his father on 28th February 2015. The learned trial judge considered the evidence led by the parties. She stated that it was common cause that the plaintiff and 1st defendant (1st respondent) entered into a contract of sale of house number 2990. It was her determination that the plaintiff paid K10,000 to the 1st defendant and the title deed that had been deposited with CETZAM on account of the 1st defendant's indebtedness was later retrieved after payment. The learned trial judge additionally concluded that the 1st defendant had disappeared after receiving the payment and handing the certificate of title over to the plaintiff. She pronounced that the title deed was exclusively in the name of the 1st defendant. The trial court went on to adjudge that the plaintiff had been swindled out of his money by the 1st defendant and others who appeared to have played a role in having the contract of sale, assignment and insertion in the title deed drafted. Moreover, that that was the only reason that could be assigned for the J7 absence of documents of the transaction on the file for house number 3990 Chimwemwe at Kitwe City Council. The learned trial judge did not believe that the 2nd and 3rd defendants were aware of the contract. She expressed the view that a party who appealed to equity must do so with clean hands. She was of the opinion that the plaintiff's hands were soiled. He should have informed the 3rd respondent right away that he had bought the house, instead of pretending to be a Nkana Water official. The Court further opined that the insertion in the memorials of the title deed would have made an inquiring mind to query the wrong information that had been inserted therein. The Court went on to state that it would not grant the plaintiff the reliefs he was seeking because he was aware that the property was a matrimonial house, and both husband and wife should have consented to its sale. The Court was of the view that the plaintiff had notice of the fact that there were others who had an interest in the house. It was the trial judge's further holding that for the 2nd respondent to be bound by her husband's conduct, she must have expressly or impliedly authorised the contract, or must have conducted herself so as to be estopped from denying the authority, or must have ratified the contract, which she did not do. She referred to a High Court case of Enesi Banda vs Abigail Mwanza1. J8 She thus refused to grant the plaintiff the relief he had sought, and instead "held judgment in favour of the 2nd and 3rd Defendants." She also stated that the only person the plaintiff had claims against was the 1st defendant who by his conduct of running away was liable to make good the money he had obtained from the plaintiff. The plaintiff was dissatisfied with this decision, and brings the appeal on four grounds: The Court below erred in law and fact when she held that the plaintiff was swindled by the 1st defendant despite the title deeds being in the name of the 1St defendant and also there being a valid executed contract of sale between the Plaintiff and the 1St defendant. 2. The Court below also erred in law and fact when it held that the 2nd and 3rd defendants were not aware about the sale of the house, when it is on record that the 2nd defendant was aware that there was a loan with CETZAM and that CETZAM was about to repossess the house. 3. The Court below erred in law and fact when it held that Judgment is held in favour of the 2nd and 3rd defendants when there was no any (sic) counterclaim in this action. 4. The Court in totality of the evidence failed to appreciate that the property in question was to be repossessed by CETZAM and that it was the plaintiff who paid and saved the house from repossession and therefore judgment should have been made in his favour. J9 Regarding ground one, the arguments advanced were that the Court below contradicted itself by, in one breath holding that the title deed was exclusively in the 18t respondent's name, and that he acted as he did, and yet in another breath holding that the respondent was swindled out of his money by the 1St defendant and others. It was submitted that the finding that the plaintiff was swindled by the 1st respondent was not supported by the evidence on record. In fact Niza Mwila, the 1St respondent's son confirmed that he knew that the plaintiff bought the house from his father, the 1st respondent. It was further contended, premised on section 33 of the Lands and Deeds Registry Act CAP 185 of the Laws of Zambia, that the 1st respondent as registered owner of the property was free to contract. The trial court ought to have given effect to the contract. Colgate Palmolive (Z) INC vs Chuka and Others2, Finance Bank Zambia Limited & Another vs Simataa3 and Phiri vs Tembo4 were relied upon in support of this argument. The case of Banda vs Mwanza1 relied upon by the trial judge was said to be distinguishable from the present one. It was contended that the 2nd and 3rd Respondents had no interest in the property. The arguments on ground two were that the 2nd and 3rd respondents were aware that the 1st respondent had sold the house. J10 Moving to ground three, it was submitted that the 2nd and 3rd respondents did not have any claim against the appellant, nor did they lead evidence in that respect, to merit entry of judgment in their favour. The lower court therefore erred by holding in their favour. Regarding ground four, it was argued that the lower court failed to appreciate that the property was subject of a loan obtained by the 1St respondent from CETZAM. That it was on record that the appellant gave the 1St respondent K6,000. After this money had been paid, the certificate of title was released by CETZAM. It was argued that this evidence was not challenged. Therefore, the Court should have appreciated that the property was only redeemed when the appellant availed the funds. In the premises, the lower court should have entered judgment in favour of the appellant on the totality of the evidence. We were urged to allow the appeal. The opposing arguments were that the entry on the memorial did not tally with the date of the contract of sale. It was fake and fraudulent, contrary to Sections 34 and 54 of the Lands and Deeds Registry Act. Chilufya and Kangunda5 was cited, as holding that while a certificate of title is conclusive evidence of ownership, fraud vitiates a title deed. ill It was submitted that applicable legislation conferred no power of agency on any organization to issue title deeds. Therefore, Mulenga and Banda had no authority to issue title deeds on behalf of the Kitwe City Council. In further contention, it was stated that as per Banda vs Mwanza1, one spouse should not be allowed to dispose of a matrimonial home without the consent of the other. It was maintained that the consent of the Kitwe City Council was not obtained. Therefore, the sale was illegal, null and void ab initio. Further that the validity of contract of sale was vitiated by the fraudulent title deed. The Court was urged to dismiss the appeal. When the matter was called for hearing, only Mr. Mazumba was present. Mr. Masengu was absent, despite having been served with the cause list. The Court decided to hear the appeal, in the circumstances, more so that Mr. Masengu's absence was unexplained. Mr. Mazumba relied on the heads of argument. When asked whether the matter was properly commenced, he responded in the affirmative. When questioned whether the Order for vacant possession portended specific performance of the agreement of sale, he said it was. When probed how that relief could be sought by way of Notice of Motion, his explanation was that this was because the first relief was for removal of the caveat. He explained that all the documents had been prepared, and when the appellant attempted to J12 register the documents, he discovered that a caveat had been placed on the property by the children of the 1st respondent. He insisted that the trial judge was entitled to hear and determine the matter as commenced. We have considered the appeal and the arguments of learned counsel for the appellants. It is our considered view that the question whether or not the trial judge had jurisdiction to determine the matter as commenced is unavoidable. This is on account of the position that a court that hears a matter that has been wrongly commenced, and determines it, labours in vain. Its judgment is but a mere Brutum Fulmen, being the conclusion of proceedings that were a nullity. We are mindful that the court is not routinely at large to consider issues not brought to the parties' attention, to enable them argue those issues. However, there is reposed a power in the court to consider and determine issues that crucially go to the jurisdiction of the court whose decision is questioned before it. We take a leaf in this regard, from Nivel & Mwale vs Mwale6. In that case, the Supreme Court considered the question whether the High Court was seized with jurisdiction to determine the matter that was commenced by Originating Summons, when it ought to have been commenced by Writ of summons. J13 I The decision of the Court was that the proceedings before the lower court were a nullity as the mode of commencement was contrary to the applicable rule. We will advert to this decision in detail below. In this jurisdiction the mode of commencement of proceedings is prescribed by Order VI of the High Court Rules, (HCR) Cap 27 of the Laws of Zambia. That rule, as amended, enacts as follows: 1. Except as otherwise provided by any written law or these Rules, every action in the High Court shall be commenced by writ of summons endorsed and accompanied by a full statement of claim. 2. Any matter which under any written law or these rules may be disposed of in chambers shall be commenced by an originating summons. The first relief the appellant claimed for was removal of the caveat placed on House No. 2990 Chimwemwe Township Kitwe. Although the index to the Record of Appeal indicates that the matter was commenced by Originating Summons, the claims were made by Originating Notice of Motion. This mode of commencement was wrong, as will soon become apparent. We note that the certificate of title for the property was issued pursuant to THE HOUSING (STATUTORY AND IMPROVEMENT AREAS) ACT 1974, now repealed by the URBAN AND REGIONAL PLANNING ACT NO. 3 of 2015. J14 4 Section 7 of the Repealed Act provided for the issuance of a Council Certificate of title in favour of the transferee of such land by the Council. Section 26 provided for the lodging of a caveat on the property by any person properly interested in the property, forbidding the making of any entry in the register. Section 31 provided for any interested person to summon the caveator before the court to show cause why such caveat should not be removed. "Court" was defined as 'any subordinate court' in the Act. The definition of 'court' was later deleted by THE HOUSING (STATUTORY AND IMPROVEMENT AREA) (AMENDMENT) ACT NO. 42 OF 2010. Instead, a new definition for the Lands Tribunal was inserted in an appropriate place, to mean the Tribunal provided for under section three of the Lands Tribunal Act, 2010. The Urban and Regional Planning Act makes no provision for removal of a caveat entered on the register of properties in the Housing (Statutory Improvement Area). Therefore, an applicant who comes to the high court must use the procedure prescribed in Order VI of the High Court Rules. If the matter is determinable in chambers, it should be commenced by Originating Summons. In the matter before us, the appellant was not merely seeking the withdrawal of a caveat. He was seeking a declaration or Order that he duly purchased house No. 3990 Chimwemwe from the 1st Respondent. He was also seeking an Order for vacant possession. The Order for vacant possession would amount to J15 specific performance of the contract of sale against the vendor. That is why he was cited to the action. It was therefore necessary to commence the matter by writ of summons, as the matter could not be determined in chambers. This is because Order VI of the High Court Rules does not consign the hearing of these matters to chambers. The conclusion that the action was wrongly commenced is inevitable. In the Nivel case, supra, the Supreme Court referred to Chikuta vs Chipata Rural Council7. Malila JS, delivering the judgment of the court observed that that court had in the Chikuta case stated that where a matter is commenced using a wrong mode, the court would have no jurisdiction. He stated further that where the mode of commencement is prescribed under a statute, such mode of commencement must be followed. He referred to the holding in New Plast Industries vs Commissioner of Lands and Attorney Generals where the Supreme Court stated that where a statute prescribes the mode of commencement of action, it was such prescription rather than the relief sought which should determine how an action is commenced. Turning to the present case, we can only echo the holding in the Chikuta case that as the matter was not properly before the judge, she had no jurisdiction to make the declarations requested even if she had been so disposed. The learned trial judge proceeded to hear a matter that had been wrongly commenced. J16 Although she did not grant the appellant the relief sought, it is clear she considered them. Clearly, she had no jurisdiction to do so. Therefore, her determination of the matter is a nullity, bound to be set aside. This appeal succeeds, but not on the grounds advanced by the Appellant, who in any event was in the wrong, by commencing the matter inappropriately. We accordingly set aside the judgment of the court below, for want of jurisdiction. We make no order as to costs, because the appellant commenced the matter contrary to the applicable rule, while the respondent actively participated in a matter that was wrongly commenced. IL F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL M. M. KONDOLO, SC COURT OF APPEAL JUDGE B. 1W MAJULA COURT OF APPEAL JUDGE J17