Dr. Natalya Yakovlyeva v Isabel Boag (Appeal No. 163/2023) [2024] ZMCA 177 (2 August 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 163/2023 BETWEEN: / DR. NATALYA YAKOVLYEVA APPELLANT AND ISABEL BOAG Coram: For the Appellant: RESPONDENT Chashi, Sichinga, and Sharpe-Phiri, JJA on 19th June and 2 nd August 2024 Mr. D. Tambulukani of Messrs D. T Legal Practitioners and Ms. K. C. Kaumba of Messr s Likando Kala luka and Co. (Agents) For the Respondents: Mr. T. S. Libati of Messrs D. S. Libati Legal Practitioners JUDGMENT Sichinga JA, delivered t h e J udgm ent of th e Court Cases referred to: 1. Rosemary Bwalya v Lusaka City Counsel and Another SCZ Appeal No. 168 of 2015 2. African Banking Corporation Zambia v Mubende Country Lodge SCZ Appeal No. 116 of 2016 3 . Maila Rodger Chilele v Patson Mbao and Another CAZ Appeal No. 88 of Legislation referred to: 1. The Rules of the Supreme Court, 1999 Edition (White Book) J1 2. The Rent Act, Chapter 206 of the Laws of Zambia 3. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia 4. The High Court Rules, Chapter 27 of the Laws of Zambia 1.0 Introduction 1. 1 This is an appeal against the High Court's Ruling (Sunkutu J) of the 25 th Octa ber 2022, upholding the respondent's preliminary issues, which rendered the appellant's originating notice of motion under cause number 2018/HN/257 untenable. 2 .0 Background 2.1 The appellant, Dr. Nataliya Yakovlyeva, was the applicant in the court below under cause number 2018/HN/257. She took out an action by way of originating summons and supporting affidavit against the respondents , Isabel Mitchell Boag and Dilip Kumar Desai, who were her alleged landlords, challenging their right to claim rentals from her as she alleged that the property she was renting was not theirs. The reliefs she sought were as follows: 1. A review and determination of the standard rent to be paid under the tenancy for the property situate at Subdivision 3 of Subdivision 'AR6' of Fa rm No. 748 Ndola also known as House No. 15 Bwangalo Lane Ndola; 2. An order as to the ownership thereof and to who the applicant should pay rentals; J2 3. A determination of the beneficiaries and who is the lawful and rightful Administrator of the estate of the late Geoffrey Cooper after the conclusion of investigations into the matter; 4 . That the expenses incurred in maintaining and keeping the property in a state of good repair and condition suitable for human habitation including the surroundings be off-set as against the outstanding rent; 5. An interim injunction restraining the respondents from interfering with the applicant's quiet enjoyment of the said property or disposing of it, and or evicting the applicant until the matter is determined; 6. 7. Any other order which the Court deems fit; and Costs to be borne by the respondent. 2.2 Isabel Boag, the respondent herein, also took out an action against Dr. Yakovlyelva under cause number 2018/HN/296 by way of originating notice of motion, on 8 August 2018, seeking various orders owing to alleged breaches of the lease agreement in relation to House No. 15, Bwangalo Lane, Kansenshi, Ndola, the subject property. 2.3 The two matters were subsequently consolidated by consent of the parties on 20th November 2018. 2.4 On 24 th July 2020, the respondent herein filed a notice of intention to raise preliminary issues on points of law and mixed law and fact, on the propriety of the matter continuing to be before the court on account of: J3 1. The relief sought by the Applicant in her originating notice of motion dated 6 th July 2018 with regards to the court's determination of the standard rent having already been determined by this court in its order dated 22nd February 2019; 2. The relief sought by the Applicant in her originating notice of summons dated 6 th July 2018 with regards to the court's determination of who the owner of the house in issue is, being an issue of public knowledge and a copy of the respondent's Certificate of Title No . 1001185 being proof of ownership of the said property having been brought to the attention of the Applicant through her advocates; 3. The relief sought by the Applicant in her originating notice of motion dated 6 th July 2018 with regards this court determining who the beneficiaries are and who the lawful and rightful Administrator of the estate of the late Geoffrey Cooper is, being a matter having nothing to do with the Rent Act, Chapter 206 of the Laws of Zambia thereby wrongly sought by the Applicant and in any event being a matter already having been heard and determined by this court in the matter of the grant of letters of administration to Dilip Kumar Desai m cause number 2013 / HN/318; 4. Should the court uphold the preliminary issues raised in 1, 2 and 3 above that the reliefs sought by the Applicant in her originating notice of motion dated 6 th July 2018 with regards expenses incurred in maintaining and keeping the property in a state of good repair and condition and an order for injunction restraining the Respondent from forcibly evicting the Applicant thereby falling off; 5. Should the court uphold the preliminary issues raised in 1, 2, 3 and 4 above that the court should dismiss the Applicant's J4 application with costs of proceedings awarded to the Respondent; and 6. Should the court uphold the preliminary issues raised in 1, 2, 3, 4 and 5 above that the court allow the Respondent to proceed with her application in Cause No. 2018 / HN / 296. 3.0 Decision of the court below 3.1 The court below, in its Ruling, considered the affidavits-in support of the motion and affidavits opposing the motion, and the skeleton arguments by the parties. The learned Judge begun by stating that she was called upon to determine the matters under cause number 2018/HN/257 and proceeded to deal with the issues within the confines of Order 14A of the Rules of the Supreme Court1 . 3 .2 On the issue of the court's determination of the standard rent to be paid in respect of the subject property, the learned Judge found that Dr. Y akovlyeva executed a Lease Agreement with one Mrs. K. Compton, an agent acting on behalf of one Mr. G. Cooper (now deceased) and the Respondent. That it was an agreed term of the lease that Dr. Y akovlyeva would pay the sum of One Thousand, One Hundred United States Dollars (US$1,100.00) per month, or the equivalent, in Zambian Kwacha. The learned Judge found that the Applicant had no justification in seeking the court's intervention to determine the standard rent to be paid in respect of the subject property. The first preliminary issue succeeded. JS 3.3 On the second issue regarding the ownership of the subject property, the learned Judge considered Certificate of Title No. 1001185 in the Respondent's names, Isabel Mitchell Boag. She noted that the relationship that existed between Dr. Y akovlyeva, of the one part, and the respondent and the late Mr. Cooper, of the other part, was that of Landlord and Tenant. The learned Judge referred to paragraph 5.2 of the Lease Agreement, and found that the rent was to be collected by Mrs. K. Compton, Mr. G. Cooper or Mrs. I. Boag. The learned Judge found that the Applicant's insistence of the owner of the subject property was misplaced under the Rent Act2 . The second preliminary issue succeeded. 3.4 On the issue of the respondent being a foreigner, the learned Judge found that the Applicant merely offered speculation that the Respondent's stay in Zambia was illegal as the documents she relied upon to prove her assertion were inconclusive and not appropriate for determination under the Rent Act. The third preliminary issue succeeded. 3.5 On the question of the Respondent's Certificate of Title having been fraudulently obtained, the learned Judge found that a Certificate of Title is conclusive evidence of ownership of land as provided by section 33 of the Lands and Deeds Registry Act3. That apart from the Certificate of Title, there was on record a letter dated 27th September 201 7 , from the Assistant Chief Registrar of the Registry of Lands and Deeds, addressed J6 to the Respondent's advocates , which revealed that the Registrar was misled by one Dr. Natalia, who claimed that she was the widow of the deceased. The said letter advised the Respondent to continue enjoying the privileges and rights attached to a title holder. The learned Judge found no justification in the allegation that the Certificate of Title was fraudulently acquired. The preliminary issue succeeded. 3. 6 The next preliminary issue was regards who the beneficiaries of the late Mr Cooper's estate were, and who was the rightful Administrator of his estate? The learned Judge found that Letters of Administration were granted to one Dilip Kumar Desai, the 2 nd Respondent, under Cause No. 2013/HN/318. That this matter arose from a Landlord and Tenant relationship under the Rent Act, and as such the claim as to who is entitled to be a beneficiary of the estate of the late Geoffrey Cooper, or who was to administer the said estate could not be dealt with under the application. 3 . 7 On the issue of deducting of the expenses incurred in maintaining and keeping the property in tenantable condition, the learned Judge found that the Applicant's prayer to deduct the expenses incurred in maintaining and keeping the property that she was living in, from the outstanding rentals, would be contrary to the terms of the Lease Agreement entered into between the Applicant, the Respondent and the deceased. She declined to interfere with that particular term of the Lease J7 Agreement, which she found clear and unambiguous. The preliminary issue under paragraph 4 of the motion succeeded. 3.7 The learned Judge upheld all the preliminary issues raised, and dismissed the Applicant's originating notice of motion, which was filed on 6 th July 2018. She granted the Respondent leave to proceed with her claims under cause number 2018/HN/296. 4.0 The appeal 4.1 Dissatisfied with the lower court's Ruling, the Applicant appealed raising the fallowing grounds: 1. The learned trial Judge erred in law and fact when she found that the Appellant's allegations of the Respondent's fraudulent acquisition of the Certificate of Title to House No. 15 Bwangalo Lane, Ndola has no justification and cannot stand based on the affidavit sworn by Counsel, without conducting a trial to hear and determine the contentious issues raised by the Appellant in relation to whom the Appellant should be paying rentals; 2. The learned trial Judge erred in law and fact when she found that the Appellant has no justification in seeking the Court's intervention to determine the standard rent to be paid on House No. 15 Bwangalo Lane, and that the relief must fall away, when the parties had by way of a Consent Order executed on 21 st February 2019, mutually agreed on the standard rent to be paid monthly after the lapse of the lease agreement entered into by the Appellant and the late Mr. Geoffrey Cooper on 12th March 2013;and J8 3. The learned trial Judge erred in law when she admitted the Affidavit in Support of the Notice to Raise Preliminary Issue which was deposed to by the Respondent's lawyer despite it bearing contentious issues. 5.0 Appellant's arguments 5 . 1 Mr. Tambulukani, learned counsel for the appellant, relied on the detailed appellant's heads of argument filed on 30th May 2023. In his oral submissions he argued that that the matter was one under the Rent Act. He contended that in determining the rent payable by the appellant, it was important to know who the money was payable to since the owner of the property died before the lease lapsed. He submitted that there were contentious issues in this matter for the court to resolve and urged us to allow the appeal. 5.2 We shall not regurgitate the appellant's arguments as our decision will soon become apparent. 6.0 Respondents' arguments 6 . 1 The respondent equally filed detailed heads of argument on 3 rd August 2023. Mr. Libati, learned counsel for the respondent, relied on the said heads of argument. In sum, counsel relied on the case of Rosemary Bwalya v Lusaka City Counsel and Another1 on the issue of multiplicity of actions. J9 7.0 Our considerations and decision 7.1 The issues raised in these grounds amount to saying that the learned trial Judge erred when she held that the appellant's allegations of the respondent's fraudulent acquisition of the Certificate of Title to House No. 15, Bwangalo Lane, Ndola has no justification based on an affidavit sworn by counsel. The subsequent complaint in ground three amounts to saying that the learned trial Judge ought not to have admitted counsel's affidavit in support of the notice of motion to raise preliminary issue deposed to by counsel, as the same contained contentious issues. 7.2 The appellant's contention in sum is that she commenced an action by way of originating summons on 6 th July 2018 seeking inter alia, determination of the owner of the subject house which she was renting, following the demise of the registered owner, one Geoffrey Cooper. That the respondent produced a copy of the Certificate of Title to the subject property on 1st February 2021, by way of an affidavit in support of the notice to raise preliminary issues which was deposed to by counsel. 7.3 It was argued that it was inappropriate for the court below to determine the contentious issue of ownership based on affidavit evidence and proceed to dismiss the appellant's action under cause number 2018/HN/257. The appellant advanced that the Certificate of Title and claim to ownership of the JlO subject property which the respondent relied on in the preliminary issue did not arise at the time the appellant commenced this action, is post facto the commencement of the action and the subject of another action in the lower court under cause number 2021 /HN /220. 7 .4 The next contentious issue raised by the appellant is that the respondent is a foreign national without valid residence documents to enable her to be issued with a Certificate of Title. It was contended that the lower court ignored the fact that the known owner of the subject property, Mr. Cooper, died in 2013 . That the respondent and her daughter vacated the country in 2013 or 2014 leaving the ownership of the property in suspense. 7.5 The appellant's alleged final issue was that the respondent's Certificate of Title was obtained fraudulently. It was contended that the lower court could not assess and evaluate evidence of fraud on the basis of an affidavit. 7.6 The appellant submitted that the lower court ought to have ordered that the matter proceeds to a full trial where it would have received evidence and witnesses would have been cross examined. 7 .7 From the outset, the learned Judge noted that the issues that arose in the motion to raise preliminary issues emanated from cause number 2018/HN/ 257. She was alive to the fact that Jll she was considering the issues raised within the confines of Order 14A of the Rules of the Supreme Court (RSC). 7. 8 In the case of African Banking Corporation Zambia v Mubende Country Lodge2 the Supreme Court guided that the giving of a notice to defend was a pre-requisite to applying for the matter to be disposed of under Order 14A RSC and that the notice of intention consists of filing of a memorandum of appearance with a defence. Further, that the filing of a conditional memorandum of appearance without a defence does not amount to an intention to defend. We have adhered to this guidance in a plethora of cases including Maila Rodger Chilele v Patson Mbao and Another3. 7. 9 Order 14A, rule 1 RSC provides as fallows: "(1) The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that- (a) Such question is suitable for determination without a full trial of the action, and (b) Such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein. (2) Upon such determination the Court may dispose the cause or matter or make such order or judgment as it thinks just. J12 (3) The Court shall not determine any question under this Order unless the parties have either- (a) had the opportunity of being heard on the question, or (b) consented to an order or judgment on such determination." 7 .1 0 Furth er, Order 14A/2/3 RSC provides as follows: "The requirements for employing the procedure under this Order are the following: (a) the defendant must have given notice of intention to defend; (b) the question of law or construction is suitable for determination without a full trial of the action; (c) such determination will be final as to the entire cause or matter or any claim or issue therein; and (d) the parties had an opportunity of being heard on the question of law or have consented to an order of Judgment being made on such determination. " 7 .11 In the Mubende case, th e Suprem e Court said of Order 14A/2/3 a s follow s: "It is plain from the preceding paragraph that there are certain requirements which must be satisfied before a matter can be disposed of on a point of law. One such requirement, according to Order 14A/1-2/2, RSC is the giving of notice of intention to defend." 7. 12 Wh at is clear from the Suprem e Court's guid ance on Order 14A of the Rules of the Supreme Court supra, is t h at the provision provides a procedure for d etermining que stions of J13 law or construction without a full trial. It is suitable when the issue can be resolved based on the pleadings and without the need for extensive evidence. Specifically, as was stated in the Mubende case, the question must be pleaded in the defence filed with the memorandum of appearance pursuant to Order 11 of the High Court Rules4. 7 . 13 In the present case, upon being served with the originating notice of motion, there was no requirement on the respondent to file a notice of intention to defend by way of a memorandum of appearance and defence. The respondent was expected to file an affidavit in opposition to the originating notice of motion. Instead, what transpired was that the appellant commenced an action against the respondent by way of originating notice of motion on 6 th July 2018. The respondent did not file an affidavit in opposition. Four months later, on 18th November 2018, the respondent commenced her own action against the appellant by way of originating notice of motion. The two actions were consolidated by consent order dated November 2018. 7 . 14 The record does not r eveal that subsequent orders for direction were granted to the parties pursuant to clause 2 of the consent order. On 24th July 2020, the respondent filed a notice of intention to raise preliminary issues and the resultant ruling is the subject of this appeal. J14 7 .15 Going by the guidance in the Mubende case, it would appear that this was not an appropriate case to be dealt with under the procedure of Order 14A RSC where inter alia the requirement of a notice of intention to defend is mandatory. It appears that Order 14A RSC presupposes a procedural stage where pleadings have been exchanged and parties have each laid out their cases in detail. Typically, this would entail that a matter is contentious and was commenced by way of writ and statement of claim. For matters commenced by way of originating notice of motion, however, they are inherently designed to be resolved summarily or expeditiously, often based on legal arguments presented in the motion itself. In other words, issues in an originating notice of motion are supposed to be non-contentious or clear-cut, not requiring extensive fact-finding. 7 .16 Applying the summary procedure under Order 14A RSC to a matter commenced by way of originating notice of motion, which in itself is somewhat summary, would be redundant. The ref ore, unless an application to deem a matter commenced by originating notice of motion as though it had been commenced by writ, is made, Order 14A cannot be invoked in a matter commenced by originating notice of motion, as it would be impossible to satisfy certain requirements such as the filing of the intention to defend, which was clarified by the Supreme Court in the Mubende case. JlS 7.17 In casu, therefore, we come to the inescapable conclusion that the learned Judge had no jurisdiction to entertain the preliminary issues in the circumstances of this case as there was no notice of intention to defend. 7.18 We accordingly, set aside the impugned ruling as the learned Judge had no jurisdiction to consider the Preliminary Issues under Order 14A RSC. 7. 19 In the view we have taken, the grounds of appeal are rendered otiose for want of jurisdiction. We therefore, remit the case back to the High Court to be determined under the Rent Act. 8.0 Conclusion 8.1 For the reasons we have state appeal is dismissed. 8. 2 We order each party to b costs of this appeal. J. C ashi COURT OF APPEAL JUDGE ~ rpe-PX: COURT OF APPEAL JUDGE J16