Hamanyati v Kasakula and Others (HP 1073 of 2012) [2014] ZMHC 66 (24 July 2014)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY (Civil Jurisdiction) 2012/HP/1073 BETWEEN: CHOONGO HAMANYATI AND MUBANGA KASAKULA DIANA MOYO JOHN CHISHIMBA COURf JUl- 2m q: R E g IS T r y §Gq q 7 l U S ^ PLAINTIFF FIRST DEFENDANT FIRST DEFENDANT THIRD DEFENDANT SEVENTH DAY ADVENTIST ASSOCIATION IN ZAMBIA FOUTH DEFENDANT UNION REGISTERED TRUSTEES GERALD CHAPENDEKA TEMBO SATELLITE FARMERS COOPERATIVE FIFTH DEFENDANT SIXTH DEFENDANT Before the Hon. Mr. Justice D. Y. Sichinga, SC in Chambers at Lusaka on the 25th day of July, 2014 For the Plaintiff For the Defendants : : Mr. M. Lungu of Messrs Lungu Simwanza & Co. Mr. I. C. Ng’onga of Messrs I. C. Ng’onga and Co. R U L I N G ON REVIEW This is the Plaintiffs application for review of the Ruling of this Court made on 30th April, 2014. The application is made pursuant to Order 39 o f the High Court Rules, Chapter 27 o f the Laws o f Zambia. Rl The application is supported by an affidavit filed on the 13th May 2014. The gist of the affidavit in support is that this court’s ruling is contradictory on account that the defendants have no proprietory interest in the subject property and yet the Court ordered that the matter proceed to trial. There is no affidavit in opposition on the court’s record. I have, in any event seriously considered the averments in the affidavit in support together with the Ruling sought to be reviewed. At page R19 of the Ruling, I had considered the interpretation of Section 34 o f the Lands and Registry Act Chapter 185 o f the Laws o f Zambia. In my consideration, I was of the view that this particular provision was merely stating that the person who alleges the fraud must be one who is deprived of the land. At the Plaintiffs own submissions, it was advanced that at best, the 4th Defendant could argue to have an equitable interest in the land, however, the same was not registered. The stated provision cited does not state what interest one alleging fraud should have. The Defendants in their Defence have specifically pleaded fraud in acquisition of Title which they must prove at trial on a balance R2 probabilities. I am thus inclined to confirm my order that the matter proceeds to trial to prove the said allegations of fraud. In my view, the issues in this matter, notwithstanding the findings made in my Ruling, are highly contentious. It would thus be in the interest of Justice that they proceed to trial in order that findings of facts are made by the trial court. Leave to appeal to the Supreme Court is granted. Costs in the cause. This matter will now revert to the Judge with conduct. Dated this 25th day of July, 2014. R3