Donato Kashinga Ndakala (suing his capacity as Administrator of Estate of the late Francis Xavier Ndakala) v Musonda (Appeal 230 of 2019) [2021] ZMCA 86 (10 June 2021)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) OF Z OF APP BETWEEN: APPEAL NO. 230/2019 DONATO KASHINGA NDA (suing his capacity as Administrator of Estate of the late Francis Xavier Ndakala ü iUH ATI? LLANT - C'L REGISI Ri 1 OOX 5QO67 AND BERNADETTE KABWE MUSONDA (suing in her capacity as Attorney for Rosalia Ndakala) RESPONDENT Coram: Kondolo, Makungu and Majtla, JJA On the 26th day of March, 2021 and 10th day of June, 2021 For the Appellant: Messrs BCM Legal Practitioners For the Respondent: Ms. M. Kapasa - Messrs Jonas Sitimela & Partners. JUDGMENT MAKUNGU, JA delivered the Judgment of the Court. Cases referred to: 1. Crab v. Anrn District Council (1975) EWCA Civ. 7 2. Willmott v. Barber (1880)15 Ch. 96 3. Lindiwe Kate Chinyanta v. Doreen Chiwele & J12dith Tembo (2007) ZR 246 4. Re Cole (a Bankrupt) Ex parte The Trustee v. Cole (1964) 1 Ch. 175 5. Lim Teng Huan v. Ang Swee Chuan (1992) 1 WLR 1306. 6. Attorney General v. Marcus Kampumba Achiur9e (1983) ZR 1 7. Wilson Masauso Zulu v. Avondale Housing Projct Limited (1982) Z. R. 172 8. Nkhata & Four Others v. The Attorney-General Of Zambia (1966) Z. R. 124 9. Isaac Tantameni C. Chali (Executor of the Will of the Late Mwalla Mwalla) V. Liseli Mwala (Single Woman) (1995/1997) ZR 199 (cid:9) 10. Attorney-General v. Kakoma (1975) Z. R. 212 11. Godfrey Locha) v. Zambia Revenue Authority - SC Appeal No. 194/2015 12. NFC Africa Mining PLC v. Lofoyi Enterprises Limitd - SCZ Appeal No. 27/2006 Legislation referred to: 1. The Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia Other Works Referred to: 1. Halsbury's Laws of England Volume 16(2), 4th edition, paragraph 959 1.0 INTRODUCTION 1.1 (cid:9) This appeal emanates from the decision of Justice E. L. Musona dated 29th March, 2019 declaring the respondent Rosalia Ndakala as the owner of 5 acres of Lot No. 12744/M Lusaka being subdivision C of Lot No. 12744/M Lusaka and estopping the appellant from denying the rights of Rosalia Ndakala, Bernadette Kabwe Phiri and her Husband James Phiri to occupy the same. 2.0 BACKGROUND /UNDISPUTED FACT 2.1 The deceased, Francis Xavier Ndakala, owned about 6.6 hectares of farm land in Lusaka Sduth. After his death, the appellant, a brother to the deceased, was appointed administrator of the estate on 18th April, 2007. PW1 Bernadette -J2- Musonda Phiri claimed that the appellant called for a family meeting in April, 2007 in his capacity as administrator of the estate, where he informed family members that he had decided to give 5 acres of the farm land to Rosalia Ndakala and that a certificate of title would be issued in her name. The said Rosalia Ndakala was of advanced age and had lost her memory. 2.2 PW1 and her husband, PW4 James Phfri being the ones looking after Rosalia Ndakala, developed the plot. They built a house on it and had a borehole sank. In an effort to have power supply connected to the property, the appellant wrote a letter to ZESCO in which he confirmed that the land in issue belonged to his sister, Rosalia Ndakala. In order to safeguard their investment PW1 and PW4 approached the appellant with an offer to purchase the property which he refused but accepted payment of K5,000.00 which he took as a token of appreciation for the offer of the piece of land. 2.3 The appellant, who had since lost his memory due to a stroke, did not testify. However, the totality of the evidence led on his behalf was that there was neither an agreement to sell the land nor an intention to give Rosalia Ndakala the land permanently. There was also no specification as o the extent of the land -J3- which she had been allowed to occupy. The wife to the appellant testified that in May 2007, PW1 and her husband, PW4 gave the appellant 1<4900.00 as appreciation for the land but that this was not put in writing. 2.4 Sometime in 2015, the respondent and her husband were requested to vacate the property. This prompted the respondent to commence an action against the appellant claiming the following reliefs: 1) Specific performance of an oral agreement made about May 2007 for the sale by the appellant acting in his capacity as Administrator of the estate of the deceased Francis Xavier Ndakala to Rosa ha Ndakala of 5 acres of Lot No. 12744/M, Lusaka being subdivision C of Lot No. 12744/M, Lusaka; 2) Alternatively, an order that 5 acres of Lot No. 12744/M, Lusaka being subdivision C of Lot No. 12744/M, Lusaka belongs to Rosalia Ndakala; 3) An injunction restraining the appellant, whether by himself, his agents or servants or otherwise howsoever, from doing the following acts or any of them, that is to say, parting or dealing with, or -J4- disposing of the said 5 acres of Lot No. 12744/M, Lusaka being subdivision C of Lot No. 12744/M, Lusaka until further order of court and/or till determination of this matter and/or an order for interim preservation of the subject property pendete lite; 4) Damages in lieu of or in addition to specific performance; 5) Interest pursuant to section 4 of Cap 74; 6) Any further and/or alternative relief that the court shall deem fit and proper in the circumstances. 3.0 DECISION OF THE COURT BELOW 3.1 The learned Judge in the court below considered the evidence before him and found that the appellant, in his capacity as administrator of the estate of the deceased, did in fact call for a family meeting at which it was resolved that Rosalia Ndakala be allowed to stay on the 5 acres of land as she had no fixed abode. He took the view that the issues for determination were whether Rosalia Ndakala was given the particular land to occupy permanently; and whether there was a contract of sale between -J5- the appellant and Rosalia Ndakala to warrant an order for specific performance. 3.2 Judge Musona found that there was no written contract of sale. He found the respondent's evidence to be contradictory as PW 1 claimed that there was an oral contract of sale between her mother and the appellant and in the same breath claimed that the sale agreement was between her husband, James Phiri and the appellant. 3.3 Under the circumstances, the court below declined to grant the remedies of specific performance and damages. However, after considering the learned authors of Haisbury's Laws of England Volume 16(2), 4th edition, paragraph 959, the cases of Crab v. Arun District Council (1) and Willmott v. Barber, (2) the learned Judge found that the doctrine of proprietary estoppel was applicable to the case. This was because the appellant encouraged Rosalia Ndakala together with PW1 and PW4 to develop the land and wrote to ZESCO Limited to connect power to the land on the basis that Rosalia Ndakala was the owner of the land. 3.4 The trial Judge further reasoned that as PW1 and PW4 were to take care of Rozalia Ndakala and live with her on the land and -J6- were the ones who sourced the funds to develop the land, it followed that the land belonged to Rozalia Ndakala and the appellant was estopped from denying the rights of Rozalia Ndakala, PW1 and her husband, to occupy the property. 4.0 GROUNDS OF APPEAL 4.1 The appellant filed in the following grounds of appeal: 1) The learned judge erred in not conclusively deciding the nature of the rights of the respondent herein on the property in issue as to whether the only right was to occupy the property or whether she becomes the title holder to the property; 2) The learned judge misdirectd himself both in law and in fact by considering the interests of PW1 and PW4 who were not parties to the proceedings in the court below by holding that PW1 and PW4 should not be estopped from occupying the property; 3) The court below misdirected itself by passing judgment in favour of the respondent herein even after acknowledging that the evidence adduced by the respondent's witnesses was contradictory; and -J7- 4) The court below erred by ignoring the evidence before court which showed the intention of the appellant and the appellant's family in allowing the respondent to occupy the property in issue. 5.0 APPELLANT'S ARGUMENTS 5.1 In arguing ground one, the appellant contends that the decision of the court below that the land in dispute belongs to the respondent, and that the appellant is es' topped from denying the rights of the respondent, PW1 and PW4 from occupying that property as it was given to the respondent to stay on it permanently together with PW1 and PW4 poses a serious question to be resolved by this court. The question being whether or not the respondent is to occupy the property in question or she becomes a title holder. 5.2 The appellant took the view that the respondent is to merely occupy the property without owning it The reason informing this view being that the appellant did not offer the respondent the property for sale. The appellant courteously offered her a place of abode as she was an elderly woman and his paternal aunt. The beneficiaries of the estate who were present at the meeting consented to such an offer being made. -J8- (cid:9) (cid:9) 5.3 The appellant further submits that as an administrator his duties are to collect the assets of the deceased, distribute them to the beneficiaries and to render an account as per the case of Lindiwe Kate Chinyanta v. Doreen Chiwele & Judith Tembo. 3 The appellant contends that he could not have passed on property to which he had no title. 5.4 The appellant argues that the principle of proprietary estoppel does not apply to this case because the respondent was simply offered the property to live on. To illustrate the doctrine of proprietary estoppel, the appellant called in aid the cases of Re Cole (a Bankrupt) Ex parte The Trustee v. Cole (4) and Lim Teng Huan v. Ang Swee Chuan. (5) 5.5 On the authority of Attorney General v. Marcus Kampumba Achiume, 6 we were urged to reverse the findings of the court below and hold that the respondents right to occupy the property was for life. 5.6 In ground two, the appellant contends that the court below made a perverse finding or misapprehended the facts on record when it held that PW1 and PW4, who were not parties to the proceedings should not be evicted from the property. Interests -J9- of non-parties to the proceedings, should not have been considered. 5.7 It was submitted that the learned trial judge failed to adjudicate upon the matters brought before him and to give a proper evaluation of the evidence led before him. To fortify this argument, the appellant relied on Wilson Masauso Zulu v. Avondale Housing Project Limited,(') Nkhata & Four Others v. The Attorney-General of Zambia (8) and Isaac Tantameni C. Chali (Executor of the Will of the late Mwalla Mwalla) v. Liseli Mwala (Single Woman).(9) 5.8 In arguing grounds three and four, the appellant contends that the record shows that in PW4's cross-examination, he stated that he was acting together with his wife, PW1 when they offered to buy the property in dispute from the appellant for the respondent and yet the respondent was not aware of these actions. 5.9 Counsel contended that it was a complete injustice for the lower court to pass judgment in favour of the respondent who had made contradictory statements as the intention of the appellant was clear. The case of Attorney-General v. Kakoma (10) was cited for the authority that a court is entitled to make (cid:9) (cid:9) findings of fact based on the evidence where the parties advance conflicting stories. 5.10 We were urged to allow the appeal. 6.0 RESPONDENT'S ARGUMENTS 6.1 In opposing the appeal, heads of argument dated 161h June, 2020 were filed on behalf of the respondent. 6.2 In response to ground one, the respondent submits that the learned trial judge conclusively decided on the nature of the rights of the respondent to the property in issue in unambiguous language at page J24 of the judgment being impugned where the learned trial judge stated: "Based on the aforesaid, I find that the said land belongs to Rozalia Ndakala and the Defendant is estopped from denying the rights of Rozalia Ndakala, PW1 and PW4 from occupying that property as the said property was given to Rozalia Ndakala for her to stay on it permanently together with PW1 and PW4." (cid:9) I 6.3 Reference was made to Black's Law Dictionary, 8th edition for the meaning of the word "belongs" which is defined as: Belong: to be the property of a person or thing. -J1 1- The word "given", being the past participle of the word "give" was defined in the Oxford Advanced Learner's Dictionary, 5th edition as: Causing somebody or something to have or receive, hold or own something. 6.4 Counsel stated that on the basis of proprietary estoppel the court below was certain, that the land was the property of Rozalia Ndakala, as it was a gift to her. This finding was in keeping with the alternative claim by the respondent as it appears in the amended writ of summons and amended statement of claim. 6.5 In this regard, the appellant contends that the appellant has misguided himself by raising the question whether or not the respondent is a licencee or owner of the property as the learned trial Judge was clear in his judgment that the property belongs to Rozalia Ndakala. Counsel suggested that the only logical and legal way to enforce the holding of the I lower court is by giving title to the property to Rozalia Ndakala and/or her legal guardian. 6.6 With respect to the appellant's argument that the lower court did not reveal its mind on the conclusion and facts supporting -J12- the conclusion, it was submitted that after analyzing and addressing its mind to the evidence before it, the court below stated at page J21 of the judgment: "However, I find that from the evidence on record, the doctrine of proprietary estoppél is applicable in the present case." 6.7 (cid:9) The court below then proceeded to evaluate the evidence in line with the said principle at page J23 before arriving at the conclusion that the land belongs to the respondent. 6.8 It was submitted that following the family meeting at which all the beneficiaries of the estate agreed that the respondent be given the land in question, the appellant, as administrator of the estate, confirmed the gift by conduct: 1) He allowed the respondent and her guardians to take vacant possession of the 5 acres; 2) He allowed the respondent, through her guardians, to construct a house and sink a borehole; 3) He wrote to ZESCO Limited to confirm ownership of 5 acres of Plot L/ 12744/M by Rozalia NdakaIa. -J13- (cid:9) 6.9 These were all findings of fact by the trial court which cannot be overturned unless they are outside the parameters set in Wilson Masauso Zulu v. Avondale Housing Project Limited.(') 6.10 The respondent's counsel contends that the respondent's alternative claim was granted by the court below as the circumstances of the case satisfied all the three vital requirements needed to establish equity for proprietary estoppel as per the case of Lim Teng Huan v. Ang Swee Chuan. 5 The requirements being that there must have been an assurance giving rise to an expectation that the claimant would have an interest in land; the claimant must demonstrate reliance on the assurance; and the claimant must have acted to their detriment as a result of the assurance. 6.12 The respondent took the view that grounds three and four are intertwined and argued them concurrently as follows: In keeping with the principle in NFC Africa Mining PLC v. Lofoyi Enterprises Limited,( 121 the court below made conclusions that met the ends of justice by confirming that the land belongs to Rozalia Ndakala who was given by the family, through the administrator. -J14- 6.14 The respondent prayed that the judgment of the lower court be upheld and the appeal be dismissed with costs. 7.0 OUR DECISION 7.1 We have considered the record of appeal together with the arguments made on behalf of both parties. GROUND 1 7.2 In the first ground of appeal, the appellant has contended that the court below did not conclusively 'decide the nature and extent of the respondent's interest in the land. To fortify his position, the appellant referred to the case of NFC Africa Mining PLC v. Lofoyi Enterprises Limited" where the Supreme Court guided that: "... In all judgments, it is a cardinal rule that the court must reveal its mind as to why it drew certain conclusions and facts supporting these conclusions. It is mandatory that the judgment must be anchored on evidence adduced before the court. ..." 7.3 We have perused the judgment of the court below and are satisfied that the learned trial judge arrived at his decision after -J15- considering the pleadings and evidence on record in earnest. The claim for specific performance was rightly dismissed. 7.4 The endorsements on the writ of summons and statement of claim also show that, in the alternative, the respondent sought an order that the 5 acres of land in dispute belongs to her. In support of the alternative claim, the respondent looked to the doctrine of proprietary estoppel. The learned judge found that on the evidence on record the doctrine of proprietary estoppel applies. That was after reviewing various authorities on the doctrine. 7.5 (cid:9) Guided by the cases of Crabb v. Arun District Council (1) and Willmott v. Barber, 2 the learned judge found that on the strength of the family decision PW 1, FW4 and Rosalia Ndakala proceeded to occupy the land after constructing a house and sinking a borehole thereon. The appellant even wrote to Zesco Limited to connect power to the house on the basis that Ndakala owned the land. 7.6 In finding that the land 'belongs' to Rozalia Ndakala, the court below was in effect declaring that her rights to the subject land were not limited to occupation, but included the right to acquire title to it. Indeed, Black's Law Dictionary, 8th edition, cited -J16- by the respondent, defines the word "belong" as "to be the property of a person or thing." 7.7 For the foregoing reasons, we find no merit in ground one and dismiss it. GROUND 2 7.8 In ground two, the appellant argues that the court below was wrong to consider the interests of PW 1 and PW4, as they were not parties to the proceedings. We totally accept that argument and set aside the holding that the appellant be estopped from denying the rights of PW 1 and PW4 to continue occupying the house. It is trite law that courts should not grant reliefs to non parties to a case and/or grant reliefs that were not pleaded. In any case, a person who does not own a property, such as the appellant in this case who does not own the property in issue, has no legal right to restrict anybne from occupying the premises. GROUND 3 7.9 As regards grounds the third ground of appeal, we note that PW4 testified that he advised his wife that they should buy the land while PW2 and PW3 testified that there was no sale of land to Rozalia Ndakala but that she was allowed to stay on the land. -J17- S The court below found it contradictory that while the appellant had allocated the land to Ndakala PW 1 and PW4 went ahead to pay him K5,000.00. 7.10 We therefore reiterate that having found no basis upon which to grant specific performance, the court below aptly found for the respondent under the doctrine of proprietary estoppel. Therefore, we find no merit in ground three. GROUND 4 7.11 With respect to ground four, the evidence on record shows that the appellant, in his capacity as administrator, addressed the family informing them that he had allocated part of the farm to the respondent and that a certificate of title should be given to her. Later, PW1 and PW4 took possession of the land and developed it. All this happened under the watch of the appellant and his family, and speaks to their intention to give their paternal aunt the land as opposed to granting her an occupancy licence for life. 8.0 CONCLUSION 8.1 All being said, only the second ground of appeal succeeds, the rest of the grounds fail. This does not affect the outcome of the case materially, so the appeal is dismissed. In view of the family -J18- relationships involved, we order that each party should bear its own costs. M. M. KONDOLO COURT OF APPEAL JUDGE C. K. MAKUNGU COURT OF APPEAL JUDGE B. M. AJULA COU T OF APPEAL JUDGE -J19-