Belinda Lumbala and Anor v Chabala Kasese [2020] ZMCA 189 (4 November 2020)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) --COURT OF F CAZ Appeal No. 115/2019 BETWEEN: BELINDA LUMBALA SUSAN MULENGA (cid:9) AND CHABALA KASESE (cid:9) O'i NOV 2020 REG (cid:9) /STRY . J / (cid:9) . Q9o7, LUSO 1ST APPELLANT 2ND APPELLANT RESPONDENT CORAM : Kondolo, Chishimba and Mulongoti, JJA 29th September, 2020 and 4th November, 2020 For the Appellants For the Respondent Mr. M. Kunga of Messrs Barnaby, Chitundu and Kungu Advocates In Person JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Court CASES REFERRED TO: 1. Premesh Bhai Megan Patel v. Rephidim Institute Limited SCZ Judgment No. 3 of 2011 2. Covindbhai Patel and Another v. Monile Holding Company Limited (1993) S. J. 19 (SC) 3. Hanif Mohammed Bhura (Suing pursuant to a power of attorney granted in his favour by Mehrunisha Bhura) v. Yusuf Ibrahim Issa SCZ Appeal No. of 4. Natural Valley Limited v. Brick and Tile Manufacturers and Attorney General SCZ Appeal No. 188 of 2015 5. Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) ZR 175 6. Premesh Bhai Megan Patel v. Rephidim Instituted Limited (S. C. Z) No. 3 of 7. Covindbhai Baghabhai Patel and Vallabhai B Patel v. Monite Holdings Company Ltd (1993) S. J 8. Harif Mohammed Bhura v. Yusuf Ibrahim Issa Ismail Appeal 146/2013 (cid:9) (cid:9) (cid:9) -J2- 9. (cid:9) R. R Sambo & Others v. Paikani Mwanza (200) Z R 76 10, Twampane Mining Corporation Society Limited v. E. M Stoti Mining Limited SCZ No. 20 of 2011 11. Samuel Mwape Sabi vs. Finance Building Society Appeal No. 67/2014 12. Water Wells Limited v. Wilson Samuel Jackson (1984) ZR 98. 13. Stanley Mwamba7i v. Morrester Farms Limited (1977) ZR 108. LEGISLATION AND OTHER WORKS REFERRED TO: 1. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia 2. The Rules of the Supreme Court of England (White Book) 1999 Edition. 3. Artkins Court Forms, 2nd Edition, Volume 14. 4. "The Declaratory Judgment" 4th Edition Sweet & Maxwell, 2011) Woolf and Wool Editions). 5. HWR Wade in "administrative Law" 5th Edition 1.0 INTRODUCTION 1.1 (cid:9) This is an appeal arising from a ruling of the High Court delivered by Justice Bobo-Banda. The appeal deals with the issue whether a default Judgment can be entered where a declaratory relief is being sought. 2.0 FACTUAL BACKGROUND 2.1 The facts preceding the appeal are as follows; the respondent commenced an action against the appellants on 12th October, 2016. The respondent sought an order that she is the sole and rightful owner of lot No. CHIBO/992712, Chibombo District, vacant possession and quite enjoyment of the said land and -J3- demolishing of the structure erected on the land. The appellants applied to strike out the statement of claim on account of irregularity, which was denied by the lower court. The court below ordered the appellants to file their defences, if any, within 21 days from date of 19th July 2018. 2.2 On 30th July, 2018 the appellants, by letter, requested the respondent to furnish further and better particulars. The respondent refused to provide further and better particulars by letter dated 14th August, 2018. On 6th September, 2018 the appellants filed an application for further and better particulars. As they awaited a date of hearing and unbeknownst to them, the respondent entered judgment in default dated 28th August 2018. The default judgment was perfected on 7th September, 2018. 2.3 (cid:9) On the 1st of October 2018, the appellants filed an application to set aside the default judgment on the basis that it was irregular for the respondent to have entered a default judgment when the appellants had requested that they be furnished with further and better particulars. The said request was made within the time frame the court had given the appellants to file a defence. (cid:9) -J6- title. The trial court held that the appellants' defence was not meritorious to warrant setting aside the default Judgment and declined to set aside the default Judgment. 4.0 GROUNDS OF APPEAL Being dissatisfied with the decision of the court below, the appellants raised the following grounds of appeal that; (i) The court below erred in law and in fact when it held that the appellant's proposed defence to the claim had not set out facts sufficiently which if proved at trial would amount to a defence to the claim. (ii) The Honourable Judge in the court below erred in both law and fact when she held that there are no triable issues that had been brought out by the appellant in their draft defence. (iii) The court below fell in error both in law and in fact when it held that nowhere in the appellant's proposed defence was the allegation of fraud in the manner the 1st respondent obtained Certificate of Title pleaded. (iv) The Honorable Judge in court below erred in both law and fact when she held that even the counter claim does not in any way set out facts against the appellant's claims. (v) The court below fell in error both in law and fact when it held that a certificate of title cannot be vitiated on the basis of procedural flaws in the manner of obtaining the property. (vi) The court below erred in law and fact by focusing only on the respondent's interest expressed in the certificate of title at the expense of the appellant's prior interest expressed by right to use and occupation under customary tenure which had been highlighted in the proposed defence and counter-claim. -J7- (vii) The Honourable Judge in the court below fell in error both at law and fact when she failed to determine all crucial and vital issues raised in the appellant's application to set aside the default judgment of the court below such as; a) A default judgment cannot be entered in a matter where one is seeking for a declaratory relief such as the present matter; b) When the defendant seeks for further and better particulars from the Plaintiff, no default judgment can be entered until the request for further and better particulars is disposed off. 5.0 ARGUMENTS BY THE PARTIES 5.1 (cid:9) The appellants filed into Court heads of argument dated 3rd July, 2019. Grounds 1, 2 and 3 were argued together. It was argued that the statement of claim filed by the respondent showed that she was informed, sometime in 2012, that the land she sought to survey had already been surveyed and allocated to another person. Further, that despite being aware of this fact the respondent proceeded to obtain site plans and followed through all procedures until she obtained title to the property in question. In addition, that the respondent in her statement of claim admits having been informed that the appellants obtained the property in question earlier than she had obtained it. 13.2 The appellants contend that the contents of the statement of claim on its own reveals that there are triable issues therein as -J8- the respondent was informed of prior interest in the land in question. Further, it was evident that the appellants had been allocated the property earlier than the respondent. In a nutshell, that the appellants were allocated the land earlier than the respondent. 13.3 It was submitted that the appellants had raised triable issues in their proposed defence. That the appellants alleged that the person the respondent dealt with when obtaining title was not in fact the village headman in the area where the said land is situated. Further, that the respondent failed to exercise due diligence when she was informed of the earlier interest of the appellants. 5.4 It was the appellants' contention that they did indicate in the proposed defence that the respondent was erroneously and wrongfully issued title to the land in question. Further, that the appellants had averred in their proposed defence that in exercise of the right to use the land in issue under customary law, they had built a structure on the land in question and their farm worker had been in occupation of the structure. 5.5 It was argued that the appellants had raised triable issues in _J9- their proposed defence to warrant setting aside the default judgment. Further, that the issue of fraud was in fact raised when the appellants pleaded that the respondent was wrongfully and erroneously issued a certificate of title in respect of the property in question. The appellants submitted that having pleaded sufficient facts to form a defence and having raised triable issues, the lower court ought to have set aside the default judgment in line with the guidance of the Supreme Court in the case of Premesh Bhai Megan Patel v. Rephidim Institute Limited('). The Supreme Court held that the question to be considered is whether a defence on the merits has been raised or not and that it is the disclosure of the defence on the merit which is the more important point to consider. A court may set aside a default judgment provided there is a reasonable explanation for the delay or failure in filing a defence and that the appellants in fact have a defence on the merits. 5.6 It was further contended that the appellant had advanced a reasonable explanation for failing to file a defence namely that they had been waiting for the hearing of the pending application -J 10- further and better particulars. We were referred to the case of Covindbhai Patel and Another v. Monile Holding Company Limited (2) where the Supreme Court held inter alia that a default judgment should be set aside if a triable issue has been disclosed. 5.7 Grounds 4 and 6 were argued together. The appellants narrated to the court the pleadings in their counter-claim against the respondent with emphasis on the process and the efforts the made by them in purchasing the subject land from the village head man. That the appellants paid for the land and had it surveyed prior to the respondent obtaining title deeds. 5.8 Further, that when the respondent interfered with the land in question, a meeting was held with Chieftainess Mungule who advised that the respondent be given alternative land. That the respondent later produced a certificate of title but the village authorities expressed ignorance regarding how the Plaintiff acquired the property in question as they had not executed any documentation in support of issuance of title in the name of the respondent. 5.9 The appellants reiterated the averments in its proposed counter- claim, that they carried out development activities on the land in -ill- question such as planting trees, prospecting for underground water, building a two roomed house and employed a farm worker. 5.10 The appellants contended that the facts set out in the counter claim necessitated the reliefs sought in their counter claim. Further, that the counter-claim clearly showed that serious issues were raised which ought to have been investigated at trial. There was therefore sufficient material to warrant the setting aside of the default judgment. 5.11 Grounds 5 and 7 were argued together. The appellants submitted that under Section 11 (1) of the Lands and Deeds Registry Act a certificate of title may be challenged and consequently cancelled on account that it was issued by mistake, error or that the correct laid down procedure was not followed. We were referred to the case of Hanif Mohammed Bhura (Suing pursuant to a power of attorney granted in his favour by Mehrunisha Bhura) v. Yusuf Ibrahim Issa (3) in which the Supreme Court ordered cancellation of certificate of title despite fraud not having been pleaded, but based on the fact that it was demonstrated, through the pleadings, that the title was irregularly issued. -J12- 5.12 The appellants submit that they had questioned the manner in which the respondent had obtained the certificate of title therefore, the lower court ought to have found that there was need to interrogate the manner in which title was obtained at trial. The lower court misdirected itself when it held that because the appellants did not use the word fraudulently then the issue of title could not be challenged. 5.13 It was contended that the lower court failed to determine all issues before it, such as the question relating to whether or not a judgment in default could be entered where a party is seeking a declaratory relief and where there is pending before the court an application for further and better particulars. We were referred to the case of Natural Valley Limited v. Brick and Tile Manufacturers and Attorney General (4) where the Supreme Court held that a default judgment cannot be entered where a party seeks a declaratory reliefs. It was argued that the respondent sought a declaratory relief namely to be declared the sole registered and rightful owner of the property in question. It was contended that the lower court ought not to have entered a default judgment where there was a pending application for -J13- further and better particulars to enable the appellants file their defence. We were referred to the case of Wilson Masauso Zulu v. Avondale Housing Project Limited (5) where the Court guided that a trial court has a duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality. 5.14 The appellants contended further that the court below was duty bound to determine all the issues before it including the question of whether or not declaratory reliefs could be obtained by way of default judgment and whether a default judgment could be entered in the face of an application for further and better particulars. We were urged to allow the appeal. 6.0 RESPONDENT'S HEADS OF ARGUMENTS 6.1 The respondent in her heads of arguments in response to grounds one, two and three submits the proposed defence exhibited by the appellants lacks merit. Much of the contentions raised go to the merits of the main matter such as the evidence of what transpired at the time she was obtaining the land and title. She contends that she did make considerable efforts to get to the bottom of the mix up but to no avail. That there was -J14- nothing erroneous or wrongful in the obtaining of the site plans and necessary approvals. 6.2 (cid:9) We will only refer to the relevant submissions in respect of setting aside of the default judgment and declaratory judgments. The cases of Premesh Bhai Megan Patel v. Rephidim Instituted Limited (6) and Covindbhai Baghabhai Patel and Vallabhai B Patel v. Monite Holdings Company Ltd (7) were cited on the setting aside of default judgment where a defence on the merits is disclosed. The appellant went on to submit that a certificate of title is conclusive evidence of ownership and cited section 33 of the Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia. As earlier stated much of the contentions in the respondent's heads of arguments go to the history of acquisition of the land and is not relevant at this stage. 6.3 We will therefore not refer to the same. The same applies to the cited cases of Harif Mohammed Bhura v. Yusuf Ibrahim Issa Ismail (8) on cancellation of certificate title on account of fraud and R. R Sambo & Others v. Paikani Mwanza (9)• 6.4 The respondent submited that her claims in the court below were not declaratory but for a mere order of possession, and (cid:9) -us- demolition of the structure erected for illegality. This is as opposed to the case of Natural Valley Limited (Supra) where the reliefs sought were declaratory. Therefore the judge in the court below was on firm ground in issuing a default judgment in favour of the respondent. In any event, the default judgment was filed long before the application for further and better particulars was made 6.5 Though the Summons for further and better particulars was filed on 6th September 2018 and default judgment executed on 71h September 2018 there is no rule of court which dictates that a much earlier application should be superseded by a later one. Further, that the particulars sought were totally irrelevant at the material time. Having ignored the rules of court as to timeframe within which to file a defence, the appellants did so at their own peril, as held in the case of Twampane Mining Corporation Society Limited v. E. M Stoti Mining Limited (10) It was submited that the appeal has no merit and should be dismissed. Instead if filing a defence, the appellants opted to make the unnecessary application for further and better particulars. We were urged to dismiss the appeal. ,a (cid:9) 7.0 7.0 DECISION OF THE COURT J16- -J16- 7.1 We have considered the appeal, the arguments advanced and the authorities cited. The appellant has raised 7 grounds of appeal. We are of the view that the issues raised for deteiiiiination are simply the following; (i) Whether a default judgment can be entered where the relief sought is a declaratory order. (ii) Whether a court can enter default judgment where there is a pending application before it for further and better particulars. (iii) Whether the appellants had raised triable issues in their proposed defence to warrant setting aside the defau it judgment. 7.2 For reasons that will become apparent later in the judgment we will first deal with the first issue, raised under ground 7, as it raises the critical issue of whether or not a default judgment should have been entered against the appellant in the first place. 7.3 The law regarding entry of default judgments is settled in our jurisdiction. Where a defendant fails to enter appearance and file a defence within a specific period after being served with originating process, a plaintiff is entitled to enter judgment in default against such a party. The appellants argued, in a nutshell, that a court cannot enter a default judgment where one of the reliefs sought is declaratory in nature. -J 17- 7.4 It is trite that a declaratory judgment is a formal statement by court pronouncing upon the existence or non-existence of a legal state of affairs. See the learned authors of "The Declaratory Judgment" 4th Edition, Sweet & Maxwell, 2011) Woolf and Wool Editions). It pronounces upon a legal relationship but does not contain any order which can be enforced against the defendant. The learned author HWR Wade in "Administrative Law" 5` Edition state in reference to a declaratory judgment that; "by itself it merely states some existing legal situation, by enabling party to discover what his legal position is...". 7.5 The record will show that the respondent herein obtained judgment in default against the appellants following the failure on their part to file a defence. One of the reliefs sought by the respondent as pleaded in the writ of summons and statement of claim is as follows; "An order that the Plaintiff is the sole and rightful owner of Lot No. CHIB0/992 712, Chibombo District in the Central Province of the Republic of Zambia." 7.6 A Judgment in default of appearance and defence was filed on 28th August, 2018 where it was judged and ordered that the -J18- plaintiff (respondent herein) be and was hereby awarded the following as claimed in the writ and statement of claim that; (i) The Plaintiff is the sole and rightful owner of Lot No. CHIB0/992712, Chibom.bo District in the Central Province of the Republic of Zambia." (ii) The plaintiff is therefore, hereby granted vacant and quit possession of lot No. Chibo/992 712 7.7 We are of the view that the relief, above, sought and granted by the court below was declaratory in nature. Where a party commences an action and seeks a declaratory relief, a default judgment cannot be entered. The explanatory notes to the provisions of Order 13/6/1 of the Rules of the Supreme Court of England state that: "The effect of para. (1) is to preclude a plaintiff from entering judgment in default of notice of intention to defend in every case in which the endorsement on the writ contains or includes a claim which is not squarely within rr. 1 to 4 of this Order, and to require him to proceed with the action as if that defendant had given notice of intention to defend. If, therefore, there is indorsed on the writ a claim for an account, injunction, specific performance, declaration or rectification or other remedy or relief which falls outside the descriptions specified in rr. 1-4, the plaintiff cannot enter judgment in default of notice of intention to defend, unless he expressly and finally abandons every such remedy or relief." 7.8 The issue is whether the judgment in default was a declaratory judgment. It is trite that the court will not grant a declaratory -J19- order unless all the parties affected by and having an interest in a matter are before the court. A declaratory judgment cannot be obtained by default. A plaintiff seeking a declaratory judgment must proceed to trial and give evidence. We refer to Artkins Court Forms, 211 Edition, Volume 14 pages 229- 236. 7.8 In the case of Samuel Mwape Sabi vs. Finance Building Society (11)where it was stated that a declaratory judgment will not be passed by the court casually, lightly or easily". The remedy is granted only on good cause, on proper principles and consideration. Not where no useful purpose can be served. 7.9 We are of the view that the proper procedure, where a party commences an action and seeks declarations as one or some of the reliefs and the defendant does not enter appearance or file a defence, is for the plaintiff to file an affidavit of service and the matter proceeds to trial as if the defendant had entered appearance. Order 12 Rule 8 of the High Court Rules provides that: "In all actions not otherwise specifically provided for by the other sub-rules, in case the party served with the writ of summons does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit or certificate of service, the action may proceed as if such party had appeared." 7.10 Our view is that the default judgment entered in the lower court is irregular as the court did not have the requisite power to enter a default declaratory relief without the matter proceeding to trial. -J20- The lower court should have instead ordered the respondent to proceed as guided above when no defence was filed. There was also pending an application before the court by the appellants for further and better particulars which was not determined. It is trite that a request for further and better particulars refers to additional information required to provide sufficient accuracy with respect to a set of pleaded facts in an earlier document for example, the statement of claim. An insufficiently pleaded allegation causes difficulty in responding hence the request for further and better particulars which enables the other party to plead its defence. Therefore, the court below ought to have heard the application for further and better particulars before proceeding to entertain the application to enter judgment in default of appearance and defence. 7.11 As regards the issue of setting aside a default judgment, it is trite that any judgment obtained in the absence of the other party may on sufficient cause be set aside by the court. Triable issues must be allowed to proceed to trial. Where a triable issue is disclosed, the court will set aside a default judgment. See the cases of Water Wells Limited v. Wilson Samuel Jackson (12), -J21- IV (cid:9) (cid:9) Baghibah, Vallabhai B Patel (supra) Stanley Mwambazi v. Morrester Farms Limited (13)where it was stated that to set aside a default judgment, a defence on the merits must be shown and an explanation of the default given. It is the defence on the merits which is the more important point to consider. 7.12 We have perused the proposed defence on record by appellants exhibited to their affidavits in support of summons to set aside the default judgment. It appears to us that triable issues were raised requiring determination at trial such as who is the rightful owner of the property in issue, whether the legal right to occupation had accrued to the appellants at the time of issuance of title to the respondent amongst other issues. We are further of the view that a reasonable explanation for default was advanced, namely the pending application for request for further and better particulars. 7.13 We therefore hold that the court below erred by entering a default judgment, when triable issues were raised and where a declaratory relief was sought. The court below ought to have allowed the matter to proceed to trial. (cid:9) (cid:9) -J22- 7.14 For the forgoing reasons, we hereby set aside the default judgment entered by the court below and remit the matter back to the High Court for determination before another judge. 8.0 CONCLUSION 8.1 We find merit in this appeal and allow it. Costs are awarded to the appellants to be taxed in default of agreement. M. M. Kondolo, SC COURT OF APPEAL JUDGE F. M. Chishimba COURT OF APPEAL JUDGE (cid:9) COURT OF APPEAL JUDGE