Daniel Mulenga Katonga v Zambia Tourism Agency (2021 /HP/ 1294) [2022] ZMHC 95 (30 March 2022)

Rl 2021 /HP/ 1294 BETWEEN: DANIEL MULENGA KATONGO PLAINTIFF AND ZAMBIA TOURI SM AGENCY DEFENDANT Before Honourable Mrs. Justice M. Mapani-Kawimbe in Chambers on the 30th day of March 2022 For the Plaintiff Mrs. J. L Simuk.ok.o, Messrs Fraser Associates For the Defendant Mrs. N. Fumbeshi, Messrs Andrew &Partners RULING Legislation referred to: 1. Rules of the Supreme Court, 1999 Edition 2. Limitation Act, 1939 UK Cases referred to: 1. BP Zambia PLC v Zambia Competition Commission Total Aviation and Export Limited Total Zambia Limited SCZ Judgment No. 2 1 of 2 011 2. William David Carsle Wise v E. F Hervey Limited (1985) ZR 17 3 . Daniel Mwale v Njolomole Mtonga (sued as Administrator of the estate of the later Gabriel Siwanamutenje Kapuma Mtonga) v The Attorney General SCZJudgment No. 25 of2015 R2 Introduction 1) This is the defendant's application raising preliminary issue dated 31st January 2022 against the plaintiff's suit pursuant to Order 14A as read with Order 33 Rule 3 of the Supreme Court Rules . It was supported by the affidavit of Mr. Chavunga Lungu the def end ant's Chief Executive officer, and skeleton arguments that were filed into court on the same day as the summons. Defendant's case 2) It was deposed that the plaintiff took out action against the defendant on the 2 1st October 2021 , wherein he sought the following reliefs: i. ii. A declaration order that the plaintiff is entitled to purchase stand no. 7843 Kaunga Close Woodlands Lusaka unto the plaintiff. An order for specific performance of the defendant's undertaking to convey stand no. 7843 Kaunga Close Woodlands Lusaka unto the plaintiff. iii. An injunction to restrain the defendant, whether by its servants, agents or whomsoever from interfering with the plaintiff's quiet enjoyment of the property until final disposal of this matter. iv. Any further relief. Costs of suit. v. R3 3) The deponent averred t h at upon advice received from his counsel; the p laintiff claims were statute barred and offended the p rovisions of the Limitation Act 1939 UK. The deponent also averred that the p laintiff's grievances occurred between 200 1 and 2004, and s ince more than 12 years had elapsed, he could not seek relief in court. In concluding, he urged the court to dismiss the plaintiff's suit with costs. Skeleton arguments 4) On behalf of the defendant, learned counsel Mrs. N. Fumbeshi submitted tha t the plaintiff's action was statute barred. The court was invited to section 4(2) of the Limitation Act, 1939 UK which says: 4. Limitation of actions to recover land (3) 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 ......... . 5) She then stated that the plaintiff's cause of action arose 12 years ago and thus had no right to be in court. She fortified h er a ssertion by referring the court to a number of legal R4 authorities on statute bar, among them, the case of BP Zambia PLC v Zambia Competition Commission Total Aviation and Export Limited Total Zambia Limited1 where the Supreme Court held that: In Royal Trading v Zambia Revenue Authority (7), we made it clear that in interpreting the provision of section 164(4) of the Customs and Exercise Act that the section operates like the Limitation Act of 1939, as it does not give the court any discretion to extend time within which such action shall be commenced. We similarly hold in the current case as section 15 of the Competition and Fair Trading Act, acts like the statute of Limitation as it does not give the court any discretion to extend time within which an appeal to the High Court shall be lodged by any person who is aggrieved by the decision of the Competition and Fair Trading Commission. 6) In concluding, counsel reiterated that the plaintiff's suit was defective, irregular and prayed to court to dismiss it with costs. Plaintiff's case 7) In opposing the application, the plaintiff filed an affidavit and skeleton arguments dated 4 t h March 2022 . It was deposed that he was entitled to the suit house as a sitting tenant. He had not lost his interest in it because the defendant had failed to formalize the issue of his title from the Zambia National Building Society. He averred that, since his offer was still RS pending and as a sitting tenant, his case was not statute barred. In his view, the principle would only have applied if he had vacated the suit house. 8) The plaintiff further averred that, on 13th June 2012, Mr. Felix Chaila the defendant's former managing director demanded rent arrears of ZMW25 ,200 according to a copy of a letter in the exhibit marked "DMKl " , which he paid. Thus, the rent payment was to be treated as an advance towards the purchase price, which the defendant was expected to factor. He concluded by reiterating that he was entitled to the suit house and urged the court to dismiss the defendant's application. Skeleton arguments 9) Learned counsel for the p laintiff, Mrs. J. L Simukoko in her submissions contended that the plaintiff was well within his rights, when he sued the defendant. He was covered by section 4(1) and the proviso to section 4(3) of the Limitation Act, 1939 UK, which states that where the right first accrued to the State, an action could be brought against it within thirty R6 years. Thus, the defendant being purely owned by the government, was conferred that status and could be pursued through this suit. Hearing 10) I held the hearing of this application on 22nd March 2022. Learned counsel for the parties relied on their respective affidavits and skeleton arguments. I am grateful to counsel for their submissions. 11) I have considered the application, affidavits and skeleton arguments filed herein and the authorities cited therein. The issue before court is whether the plaintiffs action is statute barred on the ground that it has been brought to court after twelve years from the date that his cause of action arose? 12 ) In resolving the issue, it is trite that section 4 (3) of the Limitation Act, 1939 of the UK, which applies in Zambia states that no action to recover any land can b e brought after the expiration of twelve years from the date on which a cause of R7 action arose. In the case of William David Carsle Wise v E. F Hervey Limited2 , the Supreme Court defined what is meant by a cau se of action when it held inter alia th at: "(a) a cause of action is disclosed only when a factual situation is alleged which contained facts upon which a party can attach liability to the other upon which he can establish a right of entitlement to a judgment in his favour against another." 13) In the case of Daniel Mwale v Njolomole Mtonga (sued as Administrator of the estate of the late Gabriel Siwanamutenje Ka puma Mtonga) v The Attorney General3 , the Supreme Court stated 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 .. . " 14) Accordingly , it follows from the cited authorities that a factual situation arises when a party can attach liability against another. In such instance, a party will be required to take action to enforce his/her rights when the material facts begin to occur. 15 ) In Daniel Mwale (supra) , the Supreme Court further stated that: RS " .... the Statute of Limitation when raised, brings forth a serious legal question as to whether the Court has jurisdiction to entertain the action before it, given that it was brought outside the limit period. It hardly bears repeating that the issue of jurisdiction is a threshold question and a lifeline for continuing any proceedings. Where a Court holds the opinion that it has no jurisdiction, the very basis for continuation of the proceedings before it - it must forthwith cease to deal with In our view, the issue of statutory bar when that matter. raised is as much about the jurisdiction of the Court as it is a statutory defence for a party. It is a legal point touching on both the Court's jurisdiction and a provision of a statute .... " 16) In other words, once the defence of limitation is raised, the Court has no jurisdiction to continue proceedings before it and must cease to deal with a suit. In this case, the defendant contended that the plaintiff's suit is statute barred because his cause of action arose more than twelve years ago. On the other hand, the plaintiff dismissed the allegation contending that as offeree of the property and sitting tenant, he was entitled to buy it. If anything, the delay in formalizing title had been caused by the defendant and could not be expected to lose his rights. 18) I daresay that in the parties submissions, there is a dichotomy created; on the one hand, the defendant argued that the plaintiff's claim was time barred, while the plaintiff contended R9 that the defendant's allegation was baseless and his claims could not be extinguished. What stands out as conceded by both parties is the plaintiff is still in occupation of the suit property. In my opinion, as long as he remains on the suit property, his cause of action is still alive. He alleges that the defendant offered him the suit house and must therefore have his day in court to prove his allegation. In the circumstances, it is premature that this suit should terminate at this interlocutory stage. Instead, the parties must await trial , to establish their rights over the suit property. Conclusion and disposition 19) The defendant's application is unmeritorious and dismissed. Costs are for the plaintiff to be taxed in default of agreement. The following final order for directions is hereby issued: 1. The plaintiff shall file a reply to the defence by 7 th April 2022. 2. The parties shall file bundles of documents , witness statements, concise statement of facts, issues and RlO arguments in the case of the plaintiff by 22n d April 2022 and the defendant by 11 th May 2022 w ithout failu re . 3. The parties shall file a scheduling conference brief by 18t h May 2022. 4. The matter shall come up for a scheduling conference on 23rd May 2022 at 09:00 hours . 5. Costs for the suit shall be in the cause. Dated at Lusaka this 30th day of March 2022 M~w imb e HIGH COURT JUDGE