Borniface Kafula and Ors v Mudenda (Appeal 202 of 2003) [2007] ZMSC 135 (1 November 2007)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 202 OF 2003 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: BORNIFACE KAFULA RASTUS KAFULA MERCY KAFULA GILLIAN KAFULA LIZZY KAFULA CYNTHIA KAFULA CHARLES KAFULA MAGGIE KAFULA DOROTHY KAFULA AND BILLINGS CHOONGA MUDEND A 1st APPELLANT 2nd APPELLANT 3rd APPELLANT 4th APPELLANT 5th APPELLANT 6th APPELLANT 7th APPELLANT 8th APPELLANT 9th APPELLANT RESPONDENT CORAM: SAKALA, CJ, MUMBA AND SILOMBA, JJS. On the 7th July, 27th September and 8th November, 2005 and 21st March, 2006 and 1st November, 2007. For the 6th Appellants: For the 7th Appellant: For the Respondent: Mr. R. Ngulube of Tembo Ngulube Associates In Person Mr. J. Comhill of Wilson and Comhill JUDGMENT SILOMBA, JS, delivered the judgment of the court. The delay in the delivery of the judgment and the consequential inconvenience caused to the parties is deeply regretted. This was due to the heavy schedule of work. J2 This is an appeal against the judgment of the High Court delivered at Lusaka on the 23rd day of July, 2003. For convenience, we shall refer to the appellants as the defendants and the respondent as the plaintiff as this is what they were in the court below. The plaintiff commenced an action in the court below claiming, among other things, for an order for the possession of Stand No. 1985, Woodlands, in Lusaka and damages for failure by the defendants to yield vacant possession. The facts of the case can be summarized as follows: The plaintiff came to know about the existence of Stand No. 1985, Lusaka, through the 2nd defendant who introduced him to the 7th defendant, the administrator of the estate of the late Robert Kafula. After being introduced, the plaintiff and the 7th defendant went to Messrs Mukande and Company, a law firm that represented both the plaintiff and the 7th defendant in the purchase and transfer of the stand to the plaintiff. The agreed price was K60,000,000.00, which the plaintiff paid in instalments through Messrs Mukande and Company. At the time of trial, the plaintiff had acquired title to Stand No. 1985, Lusaka. When the plaintiff was cross-examined he told the trial court that the K60,000,000.00 included the lawyer’s fees. On whether he was aware that the certificate of title had been cancelled by the Registrar of Lands and Deeds, the plaintiff insisted that he was still the registered owner. He, however, recalled that when he inspected the register at the Lands and Deeds Registry he found a caveat. The further evidence of the plaintiff came from James Munanga, (PW2), a Senior Legal Assistant at Messrs. Mukande and Company. His evidence was that the 7 defendant came to his office and gave instructions to the law firm to apply for a certificate of title from the^ Government in his name. At the time the 7th defendant gave instructions, he had a letter of offer J3 from the Government as well as the letter of appointment as the administrator of ‘the-estate of his deceased father.. The law firm got title and - surrendered it to the 7th defendant. After a few days, the: 7th defendant and the plaintiff approached the law firm. The 7th defendant instructed the law firm to transfer the stand to the plaintiff. According to the witness, the law firm was satisfied that the 7th defendant was acting on behalf of the other beneficiaries who had signed a memorandum showing that they had no objection to the sale of the house through Mr. Mukande of Mukande and Company. And indeed when title was issued in the name of the plaintiff there was no challenge from any of the family members. In cross-examination, PW2 told the trial court that the certificate of title was granted to the 7th defendant in his capacity as administrator. On whether all the beneficiaries appended their signatures authorizing the 7th defendant to sell the stand, the witness said no. He was, however, quick to say that there was consensus because three quarters of the family members signed. In rebuttal, the evidence of the defendants was that they were residing in the house at Stand No. 1985, Lusaka, because it belonged to their father, now deceased. According to the 4th defendant (DW1), Mr. Goodson Mwansa and not the 7th defendant, was appointed as the administrator of the estate of their late father. Mr. Mwansa was-appointed on the 23rd of April, 1997 soon after the death of their father and that up to the time the case was being tried in the court below Mr. Mwansa’s order of appointment had not been revoked. As for the 7th defendant, the witness told the trial court that he appointed himself because he wanted to sell the house.