Attorney General and Ors v Kaaya (SCZ Appeal 132 of 1999) [2001] ZMSC 137 (19 October 2001)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 132/99 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: ATTORNEY GENERAL LUSAKA CITY COUNCIL DANIEL NJOVU AND 1st APPELLANT 2nd APPELLANT 3rd APPELLANT TREVOR KAAYA RESPONDENT CORAM: Lewanika Ag. DCJ; Sakala and Chirwa, JJS On 10th May and 19th October 2001 For the 1st Appellant: Mr. M. Kondolo, Senior State Advocate For the 2nd Appellant: N/P For the 3rd Appellant: Mr. P. Chisi, Chifumu Banda & Associates For the Respondent: Mr. V. Kaona, Nakonde Chambers JUDGMENT Chirwa, J. S. delivered the judgment of the Court: In this judgment we will treat the appellants as defendants in the order they appear in this appeal as at one time or the other they were defendants in the Court below. The respondent to this appeal will be referred to as the plaintiff. At the hearing of the appeal, the 1st defendant abandoned his appeal. There was no representation from the 2nd defendant. Only the 3rd defendant prosecuted his appeal. To try to clarify the appeal, it is necessary that we delve into the background. The matter was originally started by way of originating summons in which the only defendant was the 2nd defendant, the Lusaka City Council. This is shown at page 11 of the record of appeal filed by Messrs. Chifumu Banda and Associates and page 1 of the record of appeal filed by the 1st defendant. According to the record of appeal by Messrs Chifumu Banda and associates, the 2nd defendant was substituted by the first defendant: see page 42 of the record. The claim on the originating summons was for a declaration that the plaintiff was legal tenant of house No. 41 Kango Street, Libala Stage 4B and for an order of eviction of the then occupants of the said house. The claims were then amended at page 45 of the record to include: - (a) a declaration that the plaintiff’s dismissal by the 1st defendant was unlawful and therefore null and void; (b) damages arising from illegal eviction of the plaintiff by the 1st defendant from house No. 41 Kango Street Libala Stage 4B and (c) that the proceedings begun by originating summons dated 24th August 1994 be continued as if they are begun by and issued by writ of summons on the said date the service on the 1st defendant to stand. These amendments were granted by Silomba, J. and he referred the matter to the Deputy Registrar for the proceedings to proceed in the normal way as if commenced by writ of summons. It appears from the record from pages 36-40 of the record that the normal procedure under a writ of summons was followed as the plaintiff served his statement of claim and the 1st defendant served his defence. It is noted that the parties to these proceedings at this stage are the plaintiff and the 1st defendant. The matter then came for trial before Mutale J and it will be noted that the parties to that judgment are the plaintiff and the three defendants. It is also clear from the judgment that the learned trial judge considered only issues and claims brought up in the originating summons without considering the amended claims and the detailed statement of claim and defence by the 1sl defendant. The question of dismissal as pleaded in the statement of claim and defence pursuant to the amendments were raised in evidence during trial. The learned trial judge granted all the prayers as prayed by the plaintiff including the unlawful dismissal. The appeal was based on two grounds. The first ground of appeal was that the learned trial judge erred in law by granting all the reliefs sought by the plaintiff without affording the 3rd defendant an opportunity to be heard and without proof that Court process were served on him. It was argued that the rules of natural justice were not followed. In answer to this ground, it was argued by counsel for the plaintiff that after amendment of the originating summons the procedure under the writ of summons was followed. We have considered this ground of appeal and having gone through the record of appeal, the 3rd defendant has never been a party to these proceedings. The statement of claim and defence only cite the 1st defendant and the plaintiff as parties to this action. The 2nd defendant was substituted by the 1st defendant as we have already recited in our attempt to give background in this action. We are at a loss as to how the 2nd and 3rd defendants are cited as parties in the judgment. In the absence of evidence of how these two defendants were joined and any proof that the court process were served on them, we would agree that the 3rd defendant was not accorded an opportunity to be heard. On this ground alone we would allow the appeal. The second ground of appeal alleges that the learned trial judge erred in fact and in law when he held that the plaintiff is entitled to possession of the house in issue without considering the question of fraud raised in the affidavit in opposition to the originating summons. It was submitted that the plaintiff in collusion with the Secretary of the Housing Committee fraudulently transferred tenancy rights of the house in issue to the plaintiff. It was argued that the learned trial judge never took into consideration this evidence in his judgment and never gave reasons for rejecting it. It was submitted that the issue of fraud is very serious and affects the title to property. In answer to this ground it was submitted there was no defence by the 3rd defendant and that the 1st defendant never raised the issue of fraud and this cannot be raised on appeal. We have looked at the affidavit in opposition to the originating summons by one Hero Siachilubi and also the defence in paragraph 5, we are satisfied that the question of fraud was raised and the learned trial judge never referred to it in his judgment. We agree that fraud, involving title to land, is serious as no proper title can pass. We would allow this appeal on this ground of appeal also. This appeal is therefore allowed and we order that there be a retrial before a different judge and we hope that proper parties will be given an opportunity to be heard. Costs will follow the outcome of re-trial. D. M. LEWANIKA ACTING DEPUTY CHIEF JUSTICE E. L. SAKALA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE