Chansa Simfukwe and Aor v Rev Martin Chama (2020/HP /0200) [2022] ZMHC 101 (1 April 2022)

IN THE HIGH COURT FOR ZAMBIA 2020/HP /0200 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN : CHANSA SIMFUKWE AMEC COLLEGE OF HIGH EDUCATION LIMITED 1 ST PLAINTIFF 2 ND PLAINTIFF AND REV MARTIN CHAMA (Sued as trustee of African Methodist Episcopal Church) DEFENDANT BEFORE THE HONOURABLE MRS JUSTICE RUTH CHIBBABBUKA For the Pla intiffs : Mes s rs Ferd Jere & Company For th e Defendant: Messrs Central Ch ambers RULING Cases re ferred to: 1. Commonwealth Development Corporation vs Central Africa Powe r Corporation (1968) Z. R 70 2. Chief Mwanatete vs Lushato & Another 2014/ HP/ 1043 3. Leopold Walford vs Unifreight [ 1985] Z. R 203 4. Henry Kapoko vs The People 2016/ CC/ 0023 5. Raila Odinga and 5 Others vs Independent Electoral and Boundaries Commission and 3 Others [20 13] EKLR 6. Access Bank (Zambia) Limited vs Group Five/ Zcon Business Park Join Venture (suing as a firm) SCZ/ 8/ 52/2014 7. United Communications Limited vs Vodacom International Holdings [2014/ ZR Vol 3 395. 8. Dominic Mulaisho vs The Attorney General [20 12] ZR Vol 3 550 9. Ronex Prope rties Limited vs John Laing Construction Limite d & Others [1983] 3 ALL ER 10. Njolomole Mtonga (sued as Administrator of the estate of the late Gabriel Siwonamutenje Kapuma Mtonga vs The Attorney General & Daniel Mwale Appeal No. 004/ 2015 11. Zimba Jane Ndelemani Musanya vs Musanya Henry Cho/a (Co-Administrator of Newton Bwalya Musanya (2 01 2) Z. R Vol 1 12 . Boyle vs Sacker (1 989) 39 CHD 249 Rl 13. Fry vs Moore (1889) 23 QB 14. Brenda Muzyamba vs Martha Muzyamba Sinabbomba and 21 others Appeal No. 11 of 15. African Banking Corporation Zambia vs Mubende Country Lodge Limited Appeal No. 116of2016 Legislation referred to: The Rules of the Supreme Court (1999) Edition, The White Book The Statute of Limitations Act of 1939 The High Court Act, Chapter 27 of the Laws of Zambia The Constitution of Zambia, Chapter 1 of the Laws of Zambia 1.0 INTRODUCTION By a notice to r aise a preliminary issue made pursua n t to Order 14A of the Rules of the Supreme Court, the defenda nt raised an issue, which was outlined as follows: 1. Whether or not the pla intiffs are legally entitled to proceed with this action con trary to Section 4 (3) of the Limitation A ct of 1939, which b a rs actions for recovery of la nd after twelve ( 12) years h ave elapsed in light of the fact that the p la intiffs' cause of action a rose som etime in 1994 being over twenty years (20) a fter the cause accrued. The d efenda nt's a pplication is accomp anied by a n a ffid avit and sk eleton arguments, to which the pla intiffs accordingly responded to by filing an a ffidavit in opposition and accompa n ying sk eleton a rguments . The d efend a n t then responded to th e pla intiffs' court process by filing an affidavit in r eply with h arm onising a rguments in support. The plaintiffs proceed to file an application seeking an order expunging the said a ffidavit in reply and accomp anying s keleton a rguments from this court's record. The plaintiffs' a pplication is m ade pursuant to Order 3 Rules 1 and 2 of the High Court Rules, as well as Order 2 Rule 2 of the Rules of th e Supreme Court. The pla intiffs' application raised th e following issues; R2 1. Whether or not an affidavit in r eply can be filed into court without leave of court; 2 . Wheth er or not arguments in reply can raise new issues that were n ot cover ed in opposition; and 3. Wheth er fresh eviden ce can b e raised either in reply or in s keleton arguments. I will first a ddress the plain tiffs a pplication to expunge documents from the record befor e determination of the defendant's pr eliminary issue. 2.0 THE PLAINTIFFS' AFFIDAVIT EVIDENCE - APPLICATION TO EXPUNGE DOCUMENTS FROM THE COURT RECORD The plaintiffs filed an affidavit in support wherein the 1st p laintiff argued as follows: the defendant's affidavit in reply n ot only contains new issues that were n ever raised in the a ffidavit in opposition but was also issued with out the leave of the court. Paragraphs 8,9,10, 1 1,13,14 and 16 of the affidavit in reply contains fresh evid en ce contrary to the rules of procedure . The plaintiffs will n ot h ave a n opportunity to rebut t he n ew eviden ce. That a procedural injustice will be occasioned should the documents not be expunged from the record. 2 . 1 THE PLAINTIFFS' SUPPORTING EVIDENCE - APPLICATION TO EXPUNGE DOCUMENTS FROM THE COURT RECORD The application is further supported by skeleton argumen ts wher ein counsel argued that the gen era l rule as regards excess affidavits is that they a r e to be filed into cour t with leave of court. That the defendant has n ot only filed a n affidavit without leave but a lso introdu ced fresh evidence which the plaintiffs will be unable to respond to as they are not permitted to file a further affid avit on ce an affidavit in reply has been filed . Counsel r eferred this court to the cases of Commonwealth Development Corporation vs Central Africa Power Corporation 1 and Chief Mwanatete vs Lushato & Another2 to buttress th e argumen t. R3 Counsel reiterated that the filing of the affidavit in reply without the leave of this court is irregular. Further that paragraph 8,9,10,11,12,13 and 14, together with the attendant exhibits, were never raised in the affidavit in opposition and therefore constitute new evidence. Counsel argued further that additional affidavits filed without leave of court are inadmissible unless they have not been objected to or have raised issues that the mover of the motion would not have anticipated at the time of settling the affidavit in support. That in the cases cited, the court reiterated that the rationale behind the rule is that a party framing the first affidavit ought to frame it in such a way that ensures th at it takes into account a ll relevant facts of the case. Counsel argued that the def end ant was trying to release facts in a piece meal fashion in a bid to prejudice the plaintiffs' case so that the plaintiffs are gagged by procedural rules and practice. That the contents of the affidavit in reply's prejudicial value far outweigh its evidential value and must be expunged from the record of the court. Further, that the defendant cannot argue that he did not anticipate the need to produce the land register, water and electricity bills, and the ground rates as these are primary to the settling of an affidavit where you are asserting a right to a property. Counsel prayed that the defendant's entire affidavit in reply or the offending portions be expunged from the record. 3 .0 THE DEFENDANT'S AFFIDAVIT EVIDENCE- APPLICATION TO EXPUNGE DOCUMENTS FROM THE COURT RECORD The defendant filed an affidavit in opposition to the plaintiffs' affidavit in support of the application to expunge the defendant's affidavit in reply from the court record. The defendant deposed as follows: the contents of paragraph 4 of the affidavit in support are false and puzzling on the basis that the plaintiffs in paragraphs (5), (7), R4 (8),(9),(10),(11),(12),(13) and (16) of their affidavit in opposition state as follows; (a) The property was fraudulently taken from them; (b) They only had notice in 2014; (c) They admitted that the m atter a ppears to have com e to court some 26 years la ter and; (d) That the m a tter is not statute barred with p articular emphasis to paragraphs (1 2) and (16) that it falls within the exceptions under the Statute of Limita tions. The plaintiffs a llege that this matter falls under the exceptions under the Statute of Limitations A ct as such, the defenda nt is n ot barred from adducing evidence to show that this m a tter does not meet the requirements of the exception under the said statute. There is n o written law tha t requires a n affidavit in reply to be filed with leave. There was no time limit imposed by this court within which to file t h e reply which would warra nt the need to seek leave to file the said reply out of time. An inquiry at Lusa k a Wa ter & Sewerage reveals that the n a me on the bills can b e changed by anyone claiming to h ave a tenancy agreement, which the plaintiffs d o n ot have, and it is clear that the only bill the pla intiffs are relying on is the 2 021 bill wh en the defenda nt has s h own the water and electricity bills from as far back as 20 12 . The documents being referred to as fresh eviden ce cannot be said to be fresh when they are public documents free for insp ection at the relevant entities and deemed to b e known by a ll persons including the plaintiffs. The plaintiffs raised issu es in their affidavit in oppos ition to t h e defendant's preliminary issu e which were not in t h e con templation of the d efenda n t's m otion by bringing eviden ce "CS- 1-8" which n orm a lly is not brought in such an application and h en ce requiring an immediate response in rebutta l. In a n y event, this court h as the discretion to a llow a n y affid avit into eviden ce in the interest of justice. RS 3.1 THE DEFENDANT'S SUPPORTING EVIDENCE-APPLICATION TO EXPUNGE DOCUMENTS FROM COURT RECORD The defendant filed skeleton arguments wherein counsel argued that the plaintiffs' affidavit in opposition to the defendant's affidavit raised issues t hat required a rebuttal from the defendant by production of evidence that so rebutted the plaintiffs' assertions. That when the plaintiffs deposed under paragraphs (12) and (16) of their affidavit in opposition as to their case falling under the exceptions of the Statute of Limitations, they opened a pandoras box, a llowing the defendant to rebut such assertions by producing public documents marked exhibits "MCl -3". Further that this court has the discretion to take judicial n otice of the fact that the documents referred to as "MC 1-3" are all public documents, available at the lands register, Lusaka Water and Sewerage Company register and the ZESCO register. The plaintiffs are deemed to know or would have known of t h e said documents had they acted diligently and hence no prejudice would be occasioned by admitting the documents into evidence as equity aids the vigilant not the indolent. Counsel argued further that principles r elatin g to affidavit evidence are found under Order 5 of the High Court Rules, Chapter 27 of the Laws of Zambia, while Order 30 of the High Court Rules makes provision for proceedings in ch a mber s. A perusal of the foregoing rules reveals that there is no requirement in any written law for leave to be obtained before an affidavit in reply can be filed. That there being no written law, breach of any requirement to obtain leave b efore filing an a ffidavit in reply should be con sidered procedural and not fatal. That the circumstances warranting leave would apply if this court h ad issued a time limit within which to file an affidavit in reply, a nd the defendant defaulted. The authorities cited by counsel for the plaintiffs represent old case law which is no longer supported by th e modern practice. Counsel r eferred R6 this court to the case of Leopold Walford vs Unifreight3 in support of the a rgument that a breach of a regulatory rule is curable and not fatal. Further that if indeed the position is that leave of court is required prior to the filing of an affidavit in reply, Article 118 Clause 2 (e) of the Constitution of Zambia as read together with Order 5 Rule 25 and Order 30 Rules 21 and 24 of the High Court Rules clothe this court with the necessary jurisdiction and discretion to admit an affidavit filed without leave of the court. That the court in interpreting Article 118 clause 2 of the Constitution in the case of Henry Kapoko vs The People4 adopted the holding in the case of Raila Odinga and 5 Others vs Independent Electoral and Boundaries Commission and 3 Others5 wherein it was stated that: "the essence of the provisions is that the court of law should not allow the prescriptions of procedure and form to trump the primary object of dispensing substantial justice of the parties .... the court as an agency of the process of justice is called upon to appreciate all the relevant circumstances and the requirements of a particular case and conscientiously determine the best course. " That the plaintiffs' application lacks merit as there is no fresh evidence a dduced by the defendant in its affidavit in r eply and accompanying skeleton a rguments, and that everything deposed to in t h e d efendant's affidavit in reply was as a result of the pandoras box opened by the plaintiffs in submitting that the certificate was fraudulently procured a nd that the fraud was only discovered in 2014 when the public documents were there for inspection. 4 .0 THE HEARING - APPLICATION TO EXPUNGE DOCUMENTS FROM THE COURT RECORD By an order for directions dated 21 st July, 2021, this court dispensed with the attendance of the parties for the h earing of this application, R7 and gave dates within wh ich the defendant could oppose the application and within which the plaintiffs could respond. 5.0 DECISION OF THE COURT- APPLICATION TO EXPUNGE DOCUMENTS FROM THE COURT RECORD I am indebted to counsel for the submissions and arguments which I have carefully considered. By this application, the plaintiffs' argue that the defendant's affidavit in reply, and accompanying skeleton arguments, are irregularly before the court for having being filed without the leave of the court. The defendant argues in rebuttal that there is no written law that supports the plaintiffs' position that an affidavit in reply ought only to be filed after the leave of the court has been obtained. Counsel argued further that the authorities cited by counsel for the plaintiffs represent old case law which is no longer supported by modern practice. I have carefully perused the law on affidavits as contained under Order 5 of the High Court Rules, and indeed as counsel for the defendant has argued, there is no express provision that mandates a party to obtain the leave of court before filing an additional affidavit. The foregoing notwithstanding, our courts have had occasion to adjudicate on the same and have pronounced that it is generally objectionable for litigants to file excess affidavits during the course of litigation of an action. The filing of an affidavit in reply is not as a matter of right, but is a discretionary remedy granted on application. The court in the Commonwealth case had this to say; "As I pointed out in the course of the hearing, the practice on application of this sort is, in general, to limit the number of affidavits - usually to one affidavit in opposition, which the defendant is entitled to put in as of right, and, with leave, one affidavit in reply on behalf of the plaintiff [Underling for the Court's emphasis] R8 Further, in the Chief Mwanatete case, the court persuasively opined that; "The rationale is that a party putting in the 1s t affidavit ought to frame it in such a way that it takes into account and covers all the facts relevant to his case. He ought not to anticipate to be given a second opportunity to advance his case, except possibly for augments on evidence before court." The above illustrates that the requirement for a litigant to obtain leave of the court before filing an excess affidavit has found its place in our case law, which as counsel for the defendant may agree, is a recognised source of law. The argument by counsel for the defendant that the position of the law is old law with no relevance to modern practice is baseless. The law remains good law, unless repudiated. A further argument by the defendant's counsel is that there was no time limit imposed by this court within which to file the reply which would warrant the need to seek leave to file the said reply out of time. A prudent perusal of the order for directions of 21 st July, 2021, by which this court gave the parties herein the time frame within which to file their affidavits and supporting documents, reveals that this court regrettably granted the plaintiffs leave to respond to the defendant's affidavit in opposition to the plaintiffs' affidavit in support of their application, but did not grant the defendant leave to respond to the plaintiffs' affidavit in opposition to the defendant's affidavit in support of its application. Nonetheless, the defendant was not precluded from applying to this court for an order for leave to file an affidavit in reply. It is important to note that the court retains the discretion to allow the admission of an affidavit that has been filed without leave where the affidavit in opposition raises issues that could not have been reasonably predicted at the time the affidavit in support of an application was being deposed to. R9 Justice Chali in th e Chief Mwanatete opined that; "In the case before me, the plaintiff filed an affidavit in reply without first having sought leave of the court. And counsel for the defendant had taken issue with that affidavit. In my view, I can only admit that affidavit on two grounds, one that the facts or issues raised in the opposing affidavit could not have been reasonably anticipated by the plaintiff at the time he settled his affidavit in support of the application and two that the issues and matters raised in the affidavit in reply are critical to a determination whether or not to grant the interlocutory injunction." Further, counsel for the defendant implored this court to admit his affidavit in reply on the basis that procedural irregularities are curable as per the law under Article 118 clause 2 (e) of the Constitution of Zambia (Amendment) Act No. 2 of 2016. The Supreme Court has pronounced itself in several cases on the true intent of Article 118 clause 2 (e) of the Constitution. In Access Bank (Zambia) Limited vs Group Five/ Zcon Business Park Joi n Venture (suing as a firm) 6 , the Supreme Court held that; "All we can say is that the Constitution never means to oust the obligation of litigants to comply with procedural imperatives as they seek justice from courts" I have carefully perused the defendant's affidavit m reply and accompanying skeleton arguments, and do note that the main argument by the defendant in a bid to coax this court into a llowing its affidavit in reply is that everything deposed to in the defendant's affidavit in reply was as a result of the pandoras box opened by the plaintiff in submitting that the certificate was fraudulently procured and that the fraud was only discovered in 2014 . In addition, the defendant argued that by the p la intiffs' exhibition of documents "CS 1- RlO 8" in its affidavit in opposition to the defendant's affidavit in support was not in the contemplation of the defendant. The question then is whether the argument by the defendant illustrates that issues were raised by the plaintiff in their affidavit in opposition that the defendant could not have reasonably anticipated at the time he settled his affidavit in support. To answer this question, I have perused the plaintiffs' amended originating process, which the defendant had sight of as per the averments under paragraphs 5, 6 and 7 of his affidavit in support of his application. The said originating process contain a llegations of fraud. The statement of claim goes further by giving detailed particulars of the alleged fraud. The defendant's application to raise a preliminary issue is premised on the plaintiffs' originating process, and as such the defendant, when settling his affidavit in support of the application, ought to have anticipated that the plaintiffs' allegations of fraud may arise in their affidavit in opposition, and that the plaintiffs' were likely to exhibit documents that support their allegation. The issues raised in the plaintiffs' affidavit are those that the defendant could have reasonably anticipated at the time he made his application. Premised on the above, the plaintiffs' application is a llowed and the defendant's affidavit in reply and accompanying arguments are accordingly expunged in their entirety from the court record. I will now turn to determination of the defendant's application to raise a preliminary issue. 6 .0 THE DEFENDANT'S AFFIDAVIT EVIDENCE - PRELIMINARY ISSUE The affidavit of Lubosi Yeta reveals that; the plaintiff caused to be filed before this court an amended writ and statement of claim on 30th July, 2020. A perusal of the said court process discloses that the plaintiffs' cause of action arose sometime in 1994, seeking to challenge Rll certificates of title for stands 8153 a nd 8 154 issu ed in 1994. The action has b een brou ght to court over 20 year s late r from w hen the titles were issued. This action is premised on an action for the r ecovery of land as s u ch the question being asked of this court can b e d etermined without a full t rial. This action is a n a buse of court process for being statute barred. Failure to d ismiss this action will cause the d efenda nt gr eat prejudice as the d ocuments in support are long lost, and k ey witn esses have died, and moved away. 6.1 THE DEFENDANT'S SUPPORTING EVIDENCE - PRELIMINARY ISSUE The application is further supported by a list of a uthorities and skeleton a r gume nts wherein counsel a rgued that Order 14A of the Rules of th e Supreme Court clothes this court with the auth ority to gr ant the application sought. He placed relia n ce on the case of United Communications Limited vs Vodacom International Holdings7 . Tha t Section 4 of the Statues of Limitations Act of 1939 prevents the recovery of land a fte r the expiration of 12 years from the date on which the cause of action accru ed to him. He r eferred this court to the cases of Dominic Mulaisho vs The Attorney GeneraF, and Ronex Properties Limited vs John Laing Construction Limited & Ot hers8 to buttress his argument. Counsel a rgued that the assignment and certificate of title exhibited in the defendant's affidavit as LY 1 -2 were executed on 15th June, 1994 by the 1s t plaintiff's d eceased father over 26 years ago. That it is untenable at law for the plaintiffs to seek the cancellation of certificates of title issued over 26 year s ago. Counsel referred this court to the case of Njolomole Mtonga (sued a s Administrator of the estate of the late Gabriel Siwonamutenje Kapuma Mtonga vs The Attorney General & Daniel Mwale9 to support his argument, and argued that a lthough the cited case is on contempt proceedings, its origin was on wh ether a litigant can bring a n action touching on land a fter t h e p eriod of 12 year s R12 has elapsed . Counsel prayed that this court dismisses this action for b eing statute barred and h ence an abuse of court process. 7.0 THE PLAINTIFFS' AFFIDAVIT EVIDENCE- PRELIMINARY ISSUE The 1st plaintiff filed an a ffidavit in opposition on 2 nd December, 2020, wherein the he d eposed that h e indeed filed an amended writ of summons and statement of claim wherein it is stated that both stands 8153 and 8154 were fraudulently trans ferred to the defendant without the plaintiffs' consent. At the time of the a mendment, the pla intiffs did not m ention , in any paragraph, that the cause of action arose in June 1994 but did claim for the rentals from June 1994. That t he pla intiffs cam e to know t h at t h e properties had been transferred from the 2 nd p la intiff to the d efendant in 2014 when the d efenda n t called for a m eeting, a nd on 6 th January, 2 020 wh en the 1st plaintiff was served with a notice of eviction. He r epresents the estate of the late Rev David Kosamu Simfukwe who died intestate in 2011. At the time of his fath er's demise, th e 1st plaintiff was n ot aware of th e fraudulent transfer of the properties in question to the d efendants. The cause of action did not arise in 1994 but in 2014 when the notice of transfer was given to the plaintiffs , or in / or around 2011, the time of the intestate's d emise, or 2020 wh en the notice of eviction was issued. The 1st plaintiff seeks to ch a llenge the fraudulent transfer of his father's estate to the defendant and t h at fra ud vitiates title. Though it appears that the process h as been brought 26 years later, h e only came to know of the fraud wh en the notice of the said change was communicated in December 20 14, or in 2020 wh en the notice of eviction was issu ed . The action is premised on the action for recovery of la nd which h e verily b elieves, as advised by h is counsel, falls within the p ermissible exceptions to t h e Statute of Limitations. The tria l of t his action w ill h elp establish h ow the defendant perpetrated the fra ud against the intestate's estate. That is d esira ble that this action R13 be decided by a full trial so that it can be shown how the defendant used force, misrepresentation, deceit and/ or fraud to disinherit the plaintiffs. That failure by the defendant to find witnesses or documents to defend its case cannot be used as a tool of injustice against the plaintiffs. That the certificates of title were in t h e names of the 2 n d plaintiff, and the defendant has admitted to chan ging the name of the title holder into its name, without the plaintiff's prior consent. That this is not a proper case that can be summarily determined as the plaintiffs are alleging fraud. 7 .1 THE PLAINTIFFS' SUPPORTING EVIDENCE - PRELIMINARY ISSUE The plaintiffs filed their skeleton arguments wherein counsel argued that the plaintiffs' action is based on fraud, mistake, misrepresentation, duress and/ or deceit and that by section 26 of the Statute of Limitations Act, the period of limitation does not begin to run until the p laintiff has discovered the fraud, or the mistake. That paragraphs 10 and 12 of th e plaintiffs' statement of claim clearly demonstrate the particulars of fraud being relied on by the plaintiffs, as per the requirement of Order 18 Rule 8 Sub-rule 16 of the Rules of the Supreme Court. That fraud, misrepresentation and mistake vitiates the period of limitation provided the party did not know of the said vitiating factors. The plaintiffs have demonstrated in their affidavit in opposition, particularly paragraphs 5, 7,8, 9 and 10 that the fraudulent transfers of the properties in question were con cealed by the Board of the defendant until 2014, which period is not only within the statutory limitation period of 12 years as per section 4 subsection 3 of the Limitation Act of 1939 but is also covered in the exceptions under section 26 of the same Act. Counsel referred this court to the case of Zimba Jane Ndelemani Musanya vs Musanya Henry Chola (Co Administrator of Newton Bwalya Musanya 10 in support of his argument that time is measured from the date of accrual of a right of R14 action . Counsel argued that the Statute of Limitations is no defence and does not apply to proceedings of this nature. That the plaintiffs have established that they only came to know about the fraudulent transfer of the property in 2014 in a meeting called by the defendant, minutes of which h ave b een exhibited under "CS 1-2" of the pla intiffs' affidavit in opposition. It was at the said meeting that the pla intiffs discovered th at the properties in question had been transferred without consideration, consent, licence and execution of a ny assignment. Counsel argued further that the holding in the Dominic Mulaisho and Ronex Properties cases are distinguishable from this case as the plaintiffs herein h ave satisfied the ingredients of not only sections 4 subsection 3 but those of section 26 of the Limitations Act which offers an exception to t h e general rule. That the plaintiffs came to know of the con cealed fraud in 20 14, and in 2020 initiated this action. The time frame is well within the statute of limitation a nd / or the exception to it. Counsel argued that dismissal of a m atter must b e resorted to sparingly as it deprives a p arty of his or her right to trial and a lso denies a party the opportunity to remedy t h e procedural irregularities. Further that dismissal of an action should be limited to plain and obvious cases where there is no point in havin g a trial. Fraud, mistake, duress and/ or misrepresentation vitiates the limitation period, a nd that the plaintiffs h ave clearly d em onstrated that t h e acquisition of the properties in issu e was done fraudulently without their consent and/ or licence. Counsel argued further th at th e d efendant h as filed a defence pursuant to Order 14A Rules of the Rules of the Supreme Court and/ or properly guided by some d ecision of the Supreme Court. That the requirement for a notice of intention to defend is s imila r to the requirement under Order 11 Rule 1 of the High Court Rules, provided should the defendant wish to enter con d ition al appearance, the rules obliges him or her to apply within 14 d ays to set aside t h e writ. That t h e defendant has filed RlS so much evidence in court that it amounts to a waiver of any irregularity, if any. Counsel argued that steps taken with the knowledge of an irregularity are taken with a view to defending the case on the merit. Counsel referred this court to the cases of Boyle vs Sacker11 and Fry vs Moore 12 to buttress his argument. He prayed that the defendant's application be dismissed with costs. 8 .0 THE HEARING- PRELIMINARY ISSUE By an order for directions dated 21 st July, 2021, this court dispensed with the attendance of the parties for the hearing of this application, and gave dates within which the defendant could oppose the application and within which the plaintiffs could respond. 9 .0 DECISION OF THE COURT - PRELIMINARY ISSUE I am indebted to counsel for the submissions and arguments which I have carefully considered. The issue raised by this application, and for this court's consideration, is whether the plaintiffs' action was commenced outside the statutory period stipulated by law for recovery of land. The defendant argues that by section 4 subsection 3 of the Statute of Limitations Act of 1939, the plaintiffs are barred from bringing an action for recovery of land for which the defendant was issued with a certificate of title over 26 years ago. The section provides as follows; "No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person." The plaintiffs' argument in rebuttal is that their action 1s based on allegations of fraud, mistake, misrepresentation and duress, which factors vitiate the limitation period as per section 26 of the Statute of Limitations Act of 1939. R16 It is indeed t rite law, as argued by counsel for the defendant, that a person is b arred from the recovery of land after a period of 12 years has elapsed from the date the cause of action first accrued. The Court in the case of Brenda Muzyamba vs Martha Muzyamba Sinabbomba and 21 others 13 ob served that the rational for the Statute of Limitations is to p reven t t h e oppression of the public by stale claims, to protect settled interests from being d istur bed and to b ring certainty and finality to disputes. As regards wh en th e cause of action arises, the Su preme Court in the Daniel Mwale case, observed that: " ..... . time begins to run when there is a person who can sue and another to be sued, when all facts have happened which are material to be proved to entitle the plaintiff succeed ... " Un doubtedly th e time prescribed by the law for the recovery of land is 12 years from the date of the cause of action , as per section 4 subsection 3 of the Statute of Limitations Act of 1939, reproduced above. However, t h e said law is not without exceptions as rightly argued by counsel for t h e plain tiffs. Section 26 of the Statute of Limitations Act provides that; "Where, in the case of any action for which period of limitation is prescribed by the Act either- (a) the action is based upon fraud of the defendant or his agent or of any person through whom he claims or his agent, or (b) the right of action is concealed by the fraud of any such person as aforesaid; or (c) the action is for relief from the consequence of mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud or mistake as the case may be, or could with reasonable diligence have discovered it. .. " A perusal of the originating process reveals that one of the reliefs th e p lain tiffs seek is predicated on an allegation of fraud. Relief (iv), con tained in t h e statement of claim, is for an order to cancel the certificates of title for Stands No. 8 153 and 8154 on account of fraud, R17 mistake, misrepresentation, duress and/or deceit in procedure and assignment. The plaintiffs' go on to give the particulars of the alleged fraud in their statement of claim. The pleading of an allegation of fraud entitles the plaintiffs to the exception afforded by section 26 of the Statute of Limitations Act as to the computation of time. The time will therefore be calculated from the time the pla intiffs discovered the alleged fraud. The question that begs an answer is when was this alleged fraud discovered by the plaintiffs? The defendant argues that the plaintiffs' originating process reveals that its cause of action arose sometime in the year 1994 and therefore a claim for the recovery of the land ought to have been commenced in that year. The plaintiffs argue that they h ave not stated, anywhere in their documents, that they discovered the fraud in 1994 but have merely claimed for rentals from as far back as June, 1994. The plaintiffs further a rgue that the cause of action arose on the happening of one of the following even ts: 1. in 2011 when the 1st plaintiffs father and a director in the 2 nd plaintiff company died; or 11. in 2014 when the notice of the transfer was given to the parties; or 111. in 2020 when the notice of eviction was issued. It is clear from the arguments above that this court has not been amply aided with evidence to assist it in identifying the precise time or p eriod within which the alleged fraud was discovered by the plaintiffs. I must state that it is perplexing that the plaintiffs cannot clearly give a definite time or period when they became aware of the a lleged fraud but are basing their arguments on conjecture. It has been left to this court to decipher, from the evidence and arguments before it, the time or period within which the plaintiffs could be said to h ave reasonably been m a de aware of the alleged fraud. An obligation has been placed on the court R18 to further examine the evid ence and arguments on a ba lance of probabilities. I will start by a ddressing th e defendant's arguments that the cause of action can be discerned from the originating process. Counsel for the defendant argued that the m ere fact that the plaintiffs a r e claiming renta ls from as far back as June, 1994, it follows t hen that tha t is the time of the cau se of action. This reasoning presupposes that if the 2 nd plaintiff believes it h a d legal ownership of the properties in question and the defendant was in occupancy m erely as a tenant, the d efendant should then h a ving been remitting rent to the 2 nd plaintiff. Fa ilure by the defendant to remit rent would give rise to a cause of action from th e d ate of default, which the plaintiffs a llege, by their claim, is June, 1994. The con comitant r esult of failure to pay rent would give rise to a cau se of action for r ental arrears. It would not in my view give rise to a cau se of action to the recovery of land , or ownership of th e sam e. Simply put, it cannot be inferred from a claim of rentals that a cau se of action for own er ship of the la nd in question had arisen . The two are separate claims. That being said however, pertaining to ta ngible eviden ce before this court, a closer scrutiny of the docum ents on record , particularly the d efendant's affidavit in suppor t of the application , reveals th at the assignment in the alleged fra udulent con veyan cing of the subject pieces of land was executed on behalf of the 2 nd plaintiff by the demised Rev. D. K Simfukwe in h is capacity as director in the 2 nd plaintiff company. Whether this was d one by way of th e a lleged duress or not, it clearly brought the intention of the defenda n t to have the property registered in its n ames to the atten tion of the 2 nd plain tiff, who could have commen ced an action against th e defendant at that time. Paragraph 10 of the pla intiffs' statement of claim provides as follows; "The plaintiff will aver at trial that the intention was altered by a group of youths sent by the defendant which youths R19 threatened violence and in fact used actual violence on the founding director in order to force him to release the certificates of title." [Underling for Court's emphasis] Under the particulars of duress, the plaintiffs a llege under (iv) that; "The threat of wanting to kill him and laying hands on him to inflict pain and apprehension of fear on him by the use of violence by the youths sent by the defendant achieved its obiective to get hold of the certificate of title by use of force and violence and the plaintiffs have su ffered loss and harm." [underling for court's emphasis] Going by the observation of the Supreme Court in the Daniel Mwale case, a cause of action arose at this point as there was a person that could sue, and one that could be sued. While the plaintiffs' reproduced averments do not stipulate the time within which the alleged duress occurred, it is clear that the same happened before the demise of Reverend Simfukwe and before the issuance of the certificates of title, that is sometime before 15th June, 1994. This evidence clearly supports the defendant's argument that the cause of action arose on or before 15th June, 1994, as the 2 nd plaintiff could h ave commenced an action as the cause of action had a risen at that time. Coming to the plaintiffs' argument that the cause of action arose in one of the years speculated by them, the first being the year 2011 in which the director in the 2 nd plaintiff's company, Reverend Simfukwe died. Not much evidence has been led to support the argument that the cause of action arose after the demise of the said reverend, and hence I will n ot belabour to extensively opine on the same, save to point out that the 2 nd p laintiff is a person at law and acts through a board of directors. There was nothing preventing the board from commencing an action on its behalf, the moment the demised reverend was coerced into surrendering the certificates of title to the defendant. It would appear though that by virtue of the 1st plaintiff having been appointed as a R20 personal representative of his late father's estate, he wants to assume the said intestate's directorial duties in the 2 nd plaintiff company, which is untenable at law. As regards the argument that the cause of action arose in 2014, on the receipt by the plaintiffs of a notice of transfer, I have carefully perused the minutes exhibited as "CS 1-2" in the 1st plaintiffs affidavit in opposition to this a pplication, which I have re produced verbatim hereunder: "On Friday 05th Decembe r, 2014, the committrr met Br Chansa Simfukwe and his relative Sr Beatrice Daima Mwambazi who were invited to meet the above committee that was tasked by the Official Board to establish facts about the house where Br Chansa and family of the late Rev. D. K Simfukwe are currently leaving. When asked about what Br. Chansa Knew about the house, Br. Chansa started by passionately thanking the church leadership for according him and other family members an opportunity to have an audience with them. He then gave history of how his young brother Mr Philip Simfukwe wrote a letter several years ago appealing to the Official Board of that time requesting for consideration to be given the house as a token of appreciation for his father's roll in establishing AMEC Mechanical Institute and Ebenezer Secondary School. The Official Board at that time did not grant the request but instead d ecided that the house be made available to Rev. Simfukwe and his family each time they were visiting Zambia from the US. A where they were leaving. In this regard, it was resolved by the Official Board that sat that time that Br Chansa Simfukwe be relocated from Mission Flats where he was renting one of the Mission Flats to go and take care of the house at AMEC Mechanical and Training Institute. By then Rev. D. K. Simfukwe was still alive and was leaving in USA. The meeting wanted to find out from Br. Chansa whethe r himself or R21 any other family members of Rev. Simfukwe had any claim against the house. In response Br. Chansa informed the meeting that himself nor any member of Rev. Simfukwe's family had no claim of any kind against the house. Sr. Beatrice Daima Mwambazi, one of the late Rev. D. K Simfukwe's grand child and speaking on behalf of other members of the larger family also informed the meeting that their desire was an appeal to the current board to consider giving the family the house as way of appreciating what Rev, Simfukwe did for the church. The meeting went a step further by calling Mr Philip Simfukwe, a young brother to Br. Chansa Simfukwe who is leaving in Florida U. S. A to find out what claims he had against the house. Mr Philip Simfukwe informed the meeting that he had no claims of any kind but was appealing to the church at large to consider giving out the house to the family members of the late Rev. Simfukwe as a token of appreciation to what his father the late Rev. D. K Simfukwe did for Ebenezer Church. .. " It is clear that the minutes do not speak to any transfer of properties, and hence it is difficult for this court to appreciate the argument by counsel for the plaintiffs that the fraud was discovered in 2014 at that meeting. A prudent look at the minutes reveals that the 2 nd plaintiff was not in attendance at the said meeting, as only the 1st plaintiff was captured as an attending member. It is unreasoned therefore for counsel for the plaintiffs to argue that it is at that meeting that both plaintiffs came to learn of the alleged fraudulent transfer of the properties when the 2 nd plaintiff was not in attendance. The only person who could be said to have discovered anything at the meeting was the person in attendance, that is the 1st plaintiff. It can be inferred that he only came to learn of the same at that meeting, if indeed that was the case, because he is not privy to the dealings of the 2 nd plaintiff by virtue R22 of the 2 nd plaintiff being a person at law. The foregoing brings into question the 1s t plaintiffs locus standi in this m atter, and his capacity to interfere into the dea lings, fair or unfair, between the 2 nd pla intiff company a nd the defendant. The alleged fraudulent transfer of the properties is between the 2 nd plaintiff and th e d efendant, a nd therefore the 1st plain tiffs alleged discovery at the meeting in 2 014 cannot be said to have been the time the cause the action, arose. A further look a t the minutes shows that they speak to the fact that the 1s t plaintiff outrightly professed not to have any interest in a house that a ppears to be on the subject la nd. What is odd however is tha t even in assuming both plaintiffs uncovered the a lleged fra ud in 20 14, the plaintiffs still did not commen ce an action against the defendant but waited until the 1st pla intiff was served with an eviction n otice in 2020 to commen ce a n action for recovery on the land. On the balance of proba bilities, the evid en ce when considered in totality suggests to this court that the plaintiffs were aware of the fact that the d efendant was the registered own er of the properties in question prior to being served with the notices of 2 014 and 2 0 2 0 . I am therefore inclined to hold that the plaintiffs have always known that the properties in question h ave been in the ownership of the defe ndant from as far back as 1994 . Further, counsel for the plaintiff a rgued that Order 14A of th e Rules of the Supreme Court, upon which this application has been made, is s imilar to Order 11 Rule 1 of the High Court Rules which m a kes provision for the d efendant to enter conditiona l appeara n ce and to a pply within 14 d ays to se t aside a writ of summons. That the defendant h as filed so much evidence in court that it a m ounts to a waiver of any irregularity, if any. It is trite law that th e provisions of Order 14A of the Rules of the Supreme Court may be invoked where a pa rty wis hes to h ave the entire matter disposed of on a point of law without a full trial, a nd not when a party wis h es to h ave a writ of summons set aside for R23 irregularity in which case the filing of a conditional memorandum of appearance without a defence would be appropriate. The foregoing was elaboratively discussed in the case of African Banking Corporation Zambia vs Mubende Country Lodge Limited 14 · The defendant's application is not aimed at raising an irregularity and hence the plaintiffs' argument is devoid of merit. The net result is that the plaintiffs' application to expunge the defendant's affidavit in reply succeeds with costs awarded to the plaintiff. Further, the defendant's application to dismiss this entire action on a point of law equally succeeds with costs awarded to the defendant. All costs awarded are to be taxed in default of agreement. Leave to appeal is granted. Dated the ...... .. .. .... ... .. . \ .1..~.day of ...... ... AiJ::. 1.l .......... 2022 , . - ~ HIG C RT . • .. 1.r .. ! . BIA IA 0 1 APR 2 _ ~-+-=,--_ -:::~ - ~ , 1 I I R24