Chibawe Mbolongwe and Anor v Flannery Mbolongwe and Ors (2001/HP/0819) [2004] ZMHC 5 (6 October 2004)

IN THE HIGH COURT FOR ZAMBIA 2001/HP/0819 AT THE PRINCIPAL REGISTRY AT LUSAKA BETWEEN: CHIBAWE MBOLONGWE MOOMBA MBOLONGWE AND FLANNERY MBOLONGWE REGISTRAR OF LANDS CHILOLO BWALYA BARCLAYS BANK OF ZAMBIA LIMITED 15 1 PLAINTIFF 2ND PLAINTIFF 1 sr DEFENDANT 2ND DEFENDANT 3RD DEFENDANT 4 TH DEFENDANT FOR THE 1 sr & 2ND PLAINTIFFS: FOR THE 1 sr DEFENDANT MR. R. MAINZA - MESSRS MAINZA & co. NO APPEARANCE FOR THE 2ND DEFENDANT MRS P. A. MWANANSHIKU - SENIOR FOR THE 3RD & 4TH DEFENDANTS: MR. CHASHI - MESSRS MUPONDA S STATE ADVOCATE CHASHI & PARTNERS JUDGMENT Cases referred to: 1. 2. 3. M. M. Simpemba {and 2 others) v K. M. Simpemba-Appeal No. 9/2000 Sithole v State Lotteries Board 1995 Z. R. 106 Katongo v A. G. 1975 Z. R. 148 J 2 4. Miyanda v A. G. 1985 Z. R. 185 Other Works Referred To: 1. Atkin's Court Forms. Second Edition. Volume 12 (2) 1996 issue, page 18 2. Atkin's Court Forms. Second Edition. Volume 14, 179~186. Legislation referred to: 1. The Intestate Succession Act, Cap 59 of the Laws of Zambia. Section 19 (2). 2. The Wills and Administration of Testate Act, Cap 60 of the Laws of Zambia. Section 3, 6{1) (a) and {b) and 36. 3. The Lands & Deeds Registry Act, Cap 185, Section 34 (c). By a Writ of Summons and accompanying Statement of Claim, the two Plaintiffs are claiming the following reliefs:~ (i) A declaration that as beneficiaries of the estate of the late Bruno Mutinta Mbolongwe the 1st and 2nd Plaintiff are entitled to possession of property number us $1145, Lusaka. (ii) An order declaring the lease agreement entered into the 1st the president of Zambia and between Defendant on 2ih December, 2000 null and void. (iii) As against the 2nd Defendant, an order compelling the said 2nd Defendant to cancel the Certificate of Title no. I 7784 fraudulently obtained by the 1st Defendant and further order directing the 2nd Defendant to cancel J3 (iv) Certificate of Title no. I 11304 unlawfully issued to the 3rd Defendant by the 2nd Defendant. As against the 3rd Defendant an order compelling the said 3rd Defendant to give the Plaintiffs vacant possession of property number lus/1145 comprising of the estate of the late Bruno Mutinta Mbolongwe. As against the 4th Defendant an order declaring the (v) mortgage relating to the property number lus/1145 wrongfully executed in favour of the 4th Defendant by the 3rd Defendant null and void. {iv} {v J {vi} Damages. Interest on {vi} Further and other relief. The brief facts of this matter are these: the 2 Plaintiffs are sisters from the same father and mother. The 1st Defendant is their brother. They share the same father. But he was from a different mother. Their father passed away on 5th may, 1999. He used to be a civil servant. Before his death, he was offered for sale, by the Government, House no. 19 lagos road, Rhodes park, Lusaka, the property in dispute. The purchase price was K11,040,000. he accepted the offer and paid a deposit of K6,000,000. By a Will dated 25.3.97, the deceased gave the House in dispute to his wife and the Plaintiffs. This Will was read out to members of the deceased, who included the 1st Defendant. The deceased1s advocates, J4 Messrs M. A. Patel and Company were appointed executors of the Will. Following the death of Mr. M. A. Patel, the Principal Partner of the firm, probate was not obtained and the Will was never executed. The wife has since passed away. After the death of the deceased, the Plaintiffs paid a further Kl million towards the purchase price of the House. On 15.5.2000, the 1st Defendant obtained an order from the local Court, appointing him administrator of the deceased's estate. On the strength of the order, he paid the balance of about K4.5 million. On 27.12.2000, he had the House registered in his name. On 3.5.2001, he sold the House to the 3rd Defendant, who mortgaged it to the 4th Defendant. There is evidence that the 1st Defendant did not inform the Plaintiffs when he obtained the Local Court Order, when he obtained the Certificate of Title in his name and when he sold the property to the 3rd Defendant. The 1st Defendant refused to attend Court for the hearing. His advocates withdrew legal representation when he failed to respond to their correspondence. Both Plaintiffs gave evidence and did not call a witness. The 1st Plaintiff's evidence in brief was that her late father passed away on 5.5.99. That before then as a civil servant, he had bought House no. 19 Lagos Road, Rhodes Park, Lusaka, from the Government. He paid a deposit of K6 million towards the purchase price of Kll,040,000. She said that she and the 2nd Plaintiff paid Kl million towards the balance after the death of their father. That the receipt was given to Mr. Sikatana, their new lawyer. That her late father left a Will. In that Will, JS the House was given to her, the 2nd Plaintiff and their mother. That there mother has since died. That the Will appointed M. A. Patel & Company, her late father's Advocates, as the administrator. A copy of the Will is at pages 4·6 of the Plaintiff's documents. She did that the Will was read out by the advocates to the family. That among the family members present at the reading of the Will was the 1st Defendant. However, their Will has not been administered as a result to the death of Mr. M. A. Patel, the Principal Partner in that law firm. She said that the 1st Defendant sold the House to the 3rd Defendant for K155 million. That before then, he had obtained its Certificate of Title in his name and rented it out. That he did all these on the strength of an order issued by the local Court. That he made all these moves without informing her and without her consent. That he never gave her and the 2nd Plaintiff any money out tot the K155 million purchase price. That this was so despite his undertaking on page 3 of his bundle of documents. She added that the 1st Defendant paid the balance of the purchase price without her knowledge and that of the 2nd Plaintiff and they did not tell him to do so. The 2nd Plaintiff's evidence was very similar to that of her sister, the 1st Plaintiff on all the main issues. She added that they used to move together in checking on the House physically, and going to lands department over the House. She confirmed that the 1st Defendant sold the House behind their back and never gave them anything out of the KlSS,000,000 purchase price. The 2nd Defendant called one witness, Mr. Darlison Siasumo. He told the Court that he was chief lands officer in the commissioner of lands' office, Lusaka. He told the Court, in January 1997, the Government offered the House in dispute to the late Mr. Bruno Mutinta Mbolongwe. He accepted the offer. That in may 2000, he learnt from the 1st Defendant's letter that Mr. Mbolongwe, had died. The letter in question is at page 2 of the 2nd deferent's documents. He said that the letter stated that the 1st Defendant was appointed administrator of the deceased's estate. That since it was accompanied by a Local Court Order of such appointment and a copy of the 1st Defendant's national registration card, the state Acted on it. It did so by issuing the Certificate of Title in the name of the 1st Defendant. That there was condition in the State Lease that the House should not change ownership until after 3 years from 27.12.2000, the date of the State Lease. He said that in May 2001, the 1st Defendant sold the House in breach of that condition. He said that the state did not know that the House was the subject of a Will by the deceased. That has the 1st Defendant disclosed this, the state would not have registered the House in his name. That when the 1st Defendant applied for change of ownership in his name, the state did not suspect any fraud. Everything appeared to be in order. That there was no caveat or any other interest registered in the name of Mr. Chilolo Bwalya, the 3rd Defendant. That on 7.5.2001, the 4th Defendant registered a mortgage on the property. The 3rd Defendant testified that in 2001 he was introduced to the 1st defendant. The 1st Defendant told him that he was selling the House J7 as the registered owner. That the 1st Defendant produced title deeds to the House which confirmed ownership. That this was further confirmed by a search at the lands and Deeds Registry. That he bought the House for K155 million, on a loan from the 4th Defendant. He then mortgaged the House to the 4th Defendant. He added that he never suspect any fraud on the part of the 1st Defendant. However, he revealed that the 1st Defendant had disclosed that he was the 1st son to the deceased, who had bought the House from the Government. And that 1st Defendant had sisters. That he did not see the condition in the State Lease which prohibited sale of the House until after 3 years from 27.12.2000. On behalf of the Plaintiff's the gist of Mr. Mainza's submissions is that the deceased entered into a contract with Government for the purchase of the House in question. That up to the date of his death, the deceased had paid a deposit to K6 million towards the purchase of the House. That up to that point the contract was not repudiated. Therefore, the House belonged to the deceased and it was in order for him to give it to the Plaintiffs under his Will. He argued that the deceased's Will was valid under Section 6(1) (a) and (b) of the Wills and administration of testate Act, Cap 60 of the Laws of Zambia. That since the deceased died testate, it was fraudulent on the part of the 1st Defendant to obtain a Local Court Order of administration of estate, which he used to acquire and sell the House to the 3rd Defendant. He added that the deceased's Will cannot be defeated by a 1 8 Local Court Order of administration issued to the 1st Defendant. In this regard he cited M. M. Simpemba and two others V K. M. Simpemba. SCZ Appeal No. 9 of 2000. He argued that the purported sale of the House by the 1st Defendant to the 3rd Defendant and the subsequent mortgage, were illegal, as the 1st Defendant had not title to pass to the 3rd Defendant. In the alternative, he submitted that even assuming that the 1st Defendant obtained the Local Court Order appointing him administrator, of the property, the sale of the House to the 3rd Defendant would still be illegal as, there was no Court authority for the sale in breach of Section 19(2) of the Intestate Succession Act, Cap 59 of the Laws of zambia. In summary, on behalf of the 3rd and 4th Defendant, Mr. Chashi submitted firstly that at the death of the deceased, the House did not belong to him since it was not yet full paid for. Therefore, it should not have been part of his Will. Its inclusion therein was null and void. Secondly he argued that by not paying the balance of the purchase price and not registered their interest in the lands and deeds, the Plaintiffs did not do enough to secure their interest in the property. Thirdly, he argued that since the deceased's Will was never executed, Section 36 (1) (e) of the Wills and Administration of Testate Act came into play. That Section deals with situation where executors appointed by a Will do not appear and take out probate. It was his submission J9 that it was in order for the 1st Defendant to obtain the order appointing him administrator in the manner he did. Fourthly, he argued that the 3rd and 4th Defendants Acted diligently by conducting a search on the property in the lands and deeds registry. He referred to Section 23 (1) (2) and (3) of the lands and deeds registry Act, Cap 185 of the Laws of Zambia. Fifthly, he argued that under Section 54 of the lands and deeds registry Act, the 3rd Defendant was the registered owner of the property. Therefore, it was validly mortgaged to the 4h Defendant. The 2nd Defendant did not file submissions. The 1st Defendant never attended the hearing at all despite all the chances he was given. He never filed submissions. I have examined the evidence and have considered submissions in this case. The first question for my consideration is whether House in dispute should have been included in the deceased's Will. In short, did it form part of his estate? In my view, the answer is found in the definition of "estate". It "means all the assets and liabilities of a deceased including those accruing to him by virtue of his death or after death'~ See Section 3 of the Wills and administration of Testate Estates Act. J 10 Before death, the deceased entered into a contract with the Government for the purchase of the House. He made a part payment towards it. In my view, upon his death, the contract subsisted and the balance of the purchase price became a liability of the deceased; and hence part of his estate. Therefore, it was in order for the House to be included in the deceased's Will. The Government never repudiated the contract. The fact that the balance of the purchase price was not paid promptly did not change the legal position. It is common knowledge that the deadline for sale of Government and council Houses was repeatedly extended up to 2003. Accordingly, I do not agree with Mr. Chashi's argument that the House should not have been included in the deceased's Will. The second question for my consideration is whether, on the facts of this case, the 1st Defendant acquired valid title to the property in dispute. His title is based on the Local Court Order appointing him as administrator of the deceased's estate. The 1st Defendant obtained a Local Court Order, appointing him as administrator of the Plaintiffs' unchallenged evidence, I find as a fact that when the 1st Defendant did the deceased's estate. From so, he knew that his late father had left a Will. The Local Court Order expressly states that it was issued on the premise that the deceased died intestate and that his estate fell to be administered or distributed under African customary law. This is not correct. The deceased left a J 11 Will. Therefore, he died testate. His estate cannot be administered on the basis of a Local Court Order of administration. On this issue, I find support in M. M. Simpemba (and 2 others) v K. M. Simpemba (1). On the facts of this case, I find that the Local Court Order in question is a nullity. Accordingly, I hereby quash and set it aside. Section 36 of the Will and administration of testate Act deals with situations where Executors of the Will fail to take probate. It provides as follows:- "{1} Where:- {i} No executor is appointed by a Will; (ii} The executor or all the executors appointed by a Will have renounced, or are persons to whom probate {iii} {iv} may not be granted; No executor survives the testator; All the executors die before obtaining probate or before having administered all the estate of the deceased; or {v} The executors appointed by a Will do not appear and take out probate; Letters of administration may be granted of the whole estate or so much of it as may be unadministered to such person or persons as the Court considers the most suitable to administer the estate: Jl2 Provided that a prior right to such grant shall belong to the following person in the following order: {i) {ii} a universal or residuary legatee; a personal representative of a deceased universal or residuary legatee; {iii} such person, being beneficiary under the Will, as would have been entitled to a grant of letter of administration if the deceased had died intestate; {iv} {v} a legatee having a beneficiary interest; a creditor of the deceased. {2} Subject to Section forty-eight a Court shall not grant letters of administration in respect of a Will by which an executor is appointed, if the executor:- {a} is living and his whereabouts are known; {b} is a person to whom probate may be granted; and { c} has not renounced his office; Unless and until a citation has been issued calling upon the executor to accept or renounce his office and the executor has renounced or has been deemed to have renounced his office in accordance with Section twenty-six or twenty-seven." J 13 In the instant case, M. A. Patel and Company failed to take probate owing to the death of the principal partner. If the 1st Defendant wanted to administer the deceased's Will he should have applied for letters of administration, width the Will attached, before the high Court, under this Section. Thereafter, he should have administered the estate as per the deceased's Will. For the foregoing reason, I do not accept Mr. Chashi's third argument. As already pointed out, the 1st Defendant obtained letters of administration from the local Court, on the basis that the deceased died intestate. He did not get his letters of administration under Section 36 (1) (e) of the Wills and administration of testate Act. This Act can only be administered by the High Court. On the facts of this case, I am of the view that the 1st Defendant did not obtain valid title to the property. The third issue I have to consider is whether the 1st Defendant obtained title of the House from the state by fraud. In both lay and legal palace, fraud is defined as deception done with the intention of gaining an advantage. The law regarding fraud is well covered in text books: "Fraud is proved when it is shown that a false representation is made either knowingly or without belief in its truth, or recklessly, carelessly whether J14 it be true or false ...... ": see Atkin's Court Forms. Second Edition Volume 12 (2) 1996 issue, page 18. Returning to this case, on 12.5.2000, the 1st Defendant made representation to the Chelston Local Court that his late father died intestate. He knows that this representation was not true. Acting on that representation, the local Court granted him an order appointing him as administrator of the deceased's estate. On 7.5.2000 and 22.9.2000, on the strength of that Order, the 1st Defendant represented to the state that he was the legally appointed administrator of the estate of the deceased. This representation was not true. Acting on that representation, the state changed ownership of the House into his name. He then sold the House to the 2nd Defendant. He made all these three moves without the knowledge of the two Plaintiffs. He did not give them part of the money from the House. In short, there is deception and financial gain by the 1st Defendant. in my I find that the 1st Defendant obtained view, this is fraud on his part. title for the House from the state by fraud. The foregoing finding deals with Mr. Chashi's second and third arguments. Fourthly, I have to determine the 1st Defendant passed title to the 3rd Defendant. J 15 Where a person has no valid title to property, he has no Capacity to pass title to another person, even if such other person is a bonafide purchaser without notice, for value: see M. M. Simpemba and 2 others v K. M. Simpemba (1). In the instant case, the property in dispute belonged to the 1 and 2nd Plaintiffs, under the deceased's Will and under the law. The 1st st Defendant had no valid title thereto. Therefore, he can pass none to the 3rd defendant. As regards the 3rd Defendant, there are two further issues. One is the restrictive clause in the State Lease. In his evidence in Chief, the 3rd Defendant said this: ''Mr. Mbolongwe told me that he was the owner of the House and was selling it. He said he had title deeds. He showed me title deeds in his name. " On page 5 of the title deeds, there is a clause which reads: "N.,B. No change of ownership Will be registered of Government House/flat bought under the ownership scheme until after three years from the date of.'' The State Lease carrying this Clause is dated 2ih December 2000. The 3rd Defendant bought this House from the 1st Defendant on ih may 2001, about five months from the date of the State Lease. The House was sold to the 3rd Defendant in clear breach of that clause. J 16 The second is ale of House without Court authority. This is based on the assumption that the 1st Defendant had a valid Local Court Order of administration. Under cross examination, the 3rd Defendant said that the 1st Defendant revealed that he got the House as Administrator of the deceased's estate. And that the 1st Defendant had revealed that he had remained with two sisters. As the facts stood then, there was need for sale of the House to the 3rd Defendant to be authorized by the local Court. Such authority was not obtained. In my view, mention of the sisters put him on notice that there was a possibility of claim to the House by sisters. The restrictive clause in the title deeds put the 3rd Defendant on notice that the House sale was irregular. So I find that the 1st Defendant did not pass title to the 3rd Defendant. He had no title and therefore, could pass none. The 4th Defendant's mortgage depends on the title status of the 1st and 3rd Defendants. Since no title passed between these two, the mortgage was not validly registered. In effect, the 4th Defendant is an unsecured creditor. Next, I wish to deal with the relief of declaration. The Plaintiffs have claimed for declarations on heads 1,2, and 5 of their claims. J 17 A declaration is a discretionary remedy. A party is not entitled to it as of right. The Court:- (1) Will not pass a declaratory judgment casually, lightly or easily. The remedy should be granted for a good cause; on proper principles and considerations. It must be made sparingly; with care and utmost caution. It is a remedy which Courts discourage except in very clear cases; (2) Will not grant a declaration when no useful purpose can be served or when an obvious alternative and adequate remedy is available in the form of damages. (3) Will not grant a declaration unless all the parties affected by, and interested in it, are before the Court: see the following:- (a) Sithole V State Lotteries Board (2) (b) Katongo V A. G. (3) (c) Miyanda V A. G. (4) (d) Atkin's Court Forms 2nd Edition. Volume 14, pages 179-186 The case at hand requires determination of the legal status and ownership of the property in dispute, after two changes of ownership. There is no adequate alternative remedy. Damages are pleaded as an additional, and not alternative, remedy. In my view this is one of the rare cases where a declaration should be granted as a remedy. Accordingly, I hereby declare as follows:- J 18 1. That the 1st and 2nd Plaintiffs, as beneficiaries of the estate of the late Bruno Mutinta Mbolongwe, are entitled to ownership and possession of stand no. 1143, Lusaka; That the State Lease of 2ih December 2000, granted to the 1st 2. Defendant in respect of stand no. 1145, Lusaka, is null and void, on the ground that it was obtained by fraud. It is hereby set aside. Since the mortgage between the 3rd and 4th Defendants was based on defective title, I do not find it necessary to make the declaration sought under head 5 of the claim. The Certificate of Title No. 17784 issued to the 1st Defendant in respect of the property, is hereby set aside, for fraud, under, Section 34 © of the lands and deeds registry Act, Cap 185 of the Laws of Zambia . The Certificate of Title No. Ll 1304 issued to the 3rd Defendant on ih May 2001 is equally invalid because it was based on the 1st Defendant's fraudulent and defective title. Further, it was obtained in breach of the State Lease of 27th December 2000. This Certificate of Title is equally hereby set aside under Section 34 © of the Lands and Deeds Registry Act. The Registrar of Lands and deeds is hereby directed to cancel it. As of now, the 3rd Defendant has no title to the House. Therefore, I order him to vacate the House and hand it over to the Plaintiffs. In this regard, I give him 90 days from the date of this judgment. J 19 Head 6 on the Statement of Claim is for damages. Unfortunately, the Plaintiffs did not adduce evidence of damages; something which could have been easily done. In the absence of such evidence, I am not in a position to assess damages myself. So I am referring assessment of damages to the deputy registrar. In my view, it is advisable for litigants to adduce evidence of damages in addition to evidence proving liability. The obvious advantage is that once liability has been proved, the trial Court would assess damages right away. Leaving damages for assessment in a separate sitting is cumbersome and not cost effective. The ih head, interest, Will be considered on assessment of damages. I order the 1st Defendant to pay costs to the Plaintiffs, the 2nd Defendant, the 3rd and 4th Defendants. It is the 1st Defendant's fraud which has made all these parties incur costs of these proceedings. The costs shall be agreed upon and in default, taxed. Delivered in open Court, this 6th day of October, 2004. M. S. Mwanamwambwa JUDGE