Alick Sakala v Morgan Phiri (Suing as Administrator of Garden North Baptist Church) (APPEAL NO. 215/2015; SCZ/8/202/2025; Selected Judgment No. 36 of 2018) [2018] ZMSC 614 (27 August 2018)

Selected Judgment No. 36 of 2018 P.1 330 IN THE SUPREME COU RT OF ZAMBIA HOLDEN AT KABWE APPEAL NO . 2 15/2 015 SCZ/8/202/20 15 BETWEEN: APPELLANT (Suing as Administrator of Garden North Baptist Church) RESPONDENT Coram: Mwanamwambwa, DCJ , Kaoma and Kajimanga, JJS On 7 th August , 2018 and 27 th August , 2018 For the Appe llant : N/A For the Respondents: Dr. OMM Banda of OMM Banda & Company JUDGMENT Kaoma, JS delivered the Judgment of the Court. Case referred to: 1. John Chisata v Attorney General (1990-1992) Z. R. 154 Legislation and other works referred to: 1. Rules of the Supreme Court (White Book) 1999, Order 14A 2. Societies Act, Cap 119 3. Land (Perpetual Succession) Act, Cap 186, sections 2, 3 and 9 J2 P.1331 This is a n ap p ea l again st a ruling of the High Court o n a pre limina ry issue r a ise d by the a ppe lla nt pursu an t to Order 14A of the Rules of the Supreme Court (White Book), 1999 edition . The brief history of the a pp eal is that the r e spondent commenced an action by writ against th e appellant claiming , inter alia, for an order that Garden North Church is the lawful, legal and registered owner of subdivision CH 275 of Stand 8531, Garden Site 3, Lusaka; an order of interim injunction to restrain the appellant from constructing on , occupying or d ealing with the property in any way and interfe ring with the Church m e mbers ' peaceful a nd quiet enjoyment of the property; an order that any sale or purchase of any portion of and any mortgage or loan regarding any portion of the property was at the party's own risk; an order for cancellation of certificate of title (if any) issued to the appellant; leave to issue writ of possession; and an order to compel the appellant to demolish his illegal structures and to restore the property to its original status. The appellant admitted in his defence that the Church is the lawful, legal and registered owner of the subject property but disputed the survey diagram inside the certificate of title alleging J3 P.1332 that it was ill egally done. He also pl ead ed that h e h as n eve r claimed to b e the owner of a n y p art of the subject la nd and a ve rre d that his developme nts are within the confines of Plot 339 / 8531 legally a llocate d to him by the Lusaka City Council. In his reply, the re spondent joined issue with the appellant upon its defence in so far as the same consisted of admission. On 21 st December, 2010 the court granted the respondent an order of interim injunction which was confirmed on 3 rd December, 2012 by the trial Judge. However , the respondent was also ordered not to d eal a dversely with or carry out any construction activities on the land in dispute pending the determination of the matter. In the meantime, on 29 th May, 2012 the appellant applied to Join the Lusaka City Council to the proceedings on the basis that the Council was the rightful party to clarify the allocation of the properties in issue as well as the extent of the properties and the boundaries. The court granted the application on 27 th June, 2012 . Thereafter, the Council filed a defence admitting that Garden North Baptist Church was the lawful and registered owner of the subject I J4 P.1333 property a nd that it issued the respondent with a n offer lett r and cer tificate of title for the property. The trial comme n ce d on 10 th June, 20 14 . The respondent testified as PWl on how the Garden North Baptist Church was registered as a religious society under the Societies Act, Cap 119 of the Laws of Zambia and how it was allocated the subject property and issued with a certificate of title on 13 th May, 2010 by the Lusaka City Council. After his evidence in chief, PW 1 was subjected to cross-examination by counsel for the appellant on a number of issues, including the Church's certific a t e of registration. In the midst of cross-examination, counsel for the appellant applied for an adjournment so that they could be availed the certificate of incorporation (if any) under the Land Perpetual Succession Act , before they could continue cross-examination. Since there was no objection by the other two advocates the matter was adjourned to 29 th September and 2 nd December, 2014. The record shows that instead, on 19 t h September, 2014 the appellant filed a notice of intention to raise a preliminary issue on a point of law pursuant to Order 14A of the White Book , asking the JS P.1334 court to d e te rmin e whe the r the res p onde nt is a b le to own land in ligh t of t h e fact th at it h ad n o lega l capacity to do so. The appellant also fil ed ske leton arguments in support of the notice to raise a pre liminary is s u e . The respondent a ls o fil ed skele ton argu m ents in r e ply to the a ppe lla nt's argum ents. The record does not have a tra nscript of proceedin gs on the preliminary issue but the ruling a ppeale d against shows that the court e ntertained and heard the matter on 12 th January, 2 015 and reserved ruling to 2 0 th March , 2015 though it was d e live red on 20th May, 2015. We are not sure whether the Council was h eard on the preliminary issue . Anyhow, the court found that the church being a society and not a limited company is not a p e rson a t law and cannot hold land in its own name and that after r egistration; it needed to b e incorporate d as a body corporate under the Land (Perpetual Succession) Act, Chapter 186 of the Laws of Zambia . However, the court took the view tha t the irregularity was not fatal to the proceedings and could b e cured; and that therefore, the preliminary issue could not properly b e determined under Order 14A which is strictly meant for issues that would finally d e termine J6 P.1335 the en tire caus e or m atte r , s u bj ec t on ly to a ppea l. Th e court ordered the respo ndent to regula rise the defect by obtaining a certificate of incorporation unde r the La nd (Perpetual Succession) Ac t before the matter could proceed further a nd meanwhile , stayed the action. A certificate of incorporation h as since b een obtained. Displeased with the decision , the appellant filed this appeal advancing one ground that the High Court Judge when dismissing the preliminary issue misdirected herself in la w and fact when she ruled that the preliminary issue raised would not finally determine the cause or matter in light of the fact that she acknowledged that the respondent has no legal capacity to own land. In support of the appeal, counsel for the appellant filed heads of argument which are a replication of the arguments made in the court below. In response , counsel for the respondent also filed heads of argument. Counsel for the appellant did not attend the hearing of the appeal although he was aware of the Court sitting. Because of the position we have taken, we have found it unnecessary to go into the arguments, except perhaps for the contention by the respondent that matters must be decided on their J7 P .1336 m e rits and t h at inte rlocutory ord er s w hich prevent a m a tter to proceed to trial must b e avoided. It is unde niable that the court h as power under Order 14A rule 1 of the White Book , either upon application by a party or of its own motion , to determine any question of law or construction of a document arising in any cause or matter at any stage of the proceedings where it appears to the court that (a) such question is suitable for determination without a full trial of the action , and (b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein (Underlining for emphasis only). However, this power is not open ended. The editorial note at paragraph 14A/2/7 , at page 202 of the White Book is very instructive. It reads as follows: "The application may be made at any time after the defendant has given notice of intention to defend and before the full trial of the action has begun." (Underlining ours for emphasis) From this passage, it is very clear that the court b elow ought not to have entertained the preliminary issue after the trial of the action had begun and in the course of cross-examination of PW 1. J8 P.1337 We wish to take this opportunity to draw th e atte ntion of trial Judges and a ll legal practitioners to this very imp ortant factor. Regarding the respondent's argument that matters must be d ecided on their m erits and interlo cutory orders which prevent this must be avo ided , we indeed h eld , in the case of Chisata v Attorney General1 that whenever possible , matte rs should be a llowe d to proceed to trial on the merits and that inte rlocutory Orders which prevent this should b e avoided. In this case, the decision the court took to entertain the prelimina ry issue when it should not have , h as gr eatly d e laye d the trial of this matter, which is still pending as we write this judgment. We have also observed, although this is not a subject of this appeal, that in ordering the respondent to obta in a certificate of incorporation under the Land (Perpe tual Succession) Act, before the trial of the action could proceed any further , the court below in effect, determined the respondent 's claim that Garden North Baptist Church is the lawful, legal and registered owner of S /D CH 275 of Stand 8531 , Garden Site 3. J9 P . 1338 If the court be low h ad to make a n y orde rs to rectify a n y d e fect in the certificate of title issued to the Church, it should have w a ited until the conclusion of the trial, after all the partie s had been heard . Nonetheless , the e nd result is that the appeal lacks merit and ought to be dismissed with costs to the respondent. The matter should take its full course in the court below. R. M . C . KAOMA SUPREME COURT JUDGE C~NGA SUPREME COURT JUDGE