Eagle Charalambous Transport and Anor v Percy Mulenga and 51 Ors (APPEAL NO. 80 OF 2018) [2018] ZMCA 607 (3 October 2018)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 80 OF 2018 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: EAGLE CHARALAMBOUS T ... - .... -., ... T ------~"' r er A• ~,.:-,. ··~ ~ ,, ··"· '·· ;.,. ' .. LIMITED j st APPELLANT PHILIPOS CHARALAMBOUS REGIS,,, Y 2 nd APPELLANT AND OX 50067, LIJS~ PERCY MULRNGA AND 51 OTHERS RESPONDENTS CORAM: C hashi, Lengale n ga and Siavwap a, JJA ON: 2 2 nd August and 3 rd October 2018 F or the Js t anrl 2 11rl Appellants: C Kaela, M essrs G. Ivl. Legal Pra ctitioners For I he Respondents: E. Sichone, Legal Aid Counsel - Legal Aid Board J UDGMENT CHASHI , J A aelivcre d the Judgmenl of the Court . Cases re ferred to: S alomon u Salomon (1897) AC, 22 l ' R ic ha rds u Jenki n s (1 887) 18 QBD, 4 51 3 Us h er u Martin (1889) 24 QBD, 272 Legi~latio n referred to: The Sup reme Court Practice (White Book) 1999 ' The High Cou rt Act, Ch apte r 27 of t h e La ws of Zamb ia , The Lands an d Deeds R egistry A c t , Chapter 18 7 of the Laws of Za mbia s -J 2- This appeal emana t e s from the Ruling of the High Court, Indus trial and Labour Division which was d eliver e d on 2 nd November 2 01 7. The brief facts giving rise to the matter , which was b efor e the court below for consideration, are th a t , the Respondents , forme r employees of the 1s t Appellant who w er e the complainants in the court b e low , wer e vide Judgm e nt d a ted 14 th Augus t 201 3 , a w ard e d p aym ent of r e dundancy p ack age, s alary arr e ars , le ave d ays and interest on the amounts and costs. The 1st Appellant then a ppealed to the Suprem e Court, which a ppeal was dismisse d. On 15 th Au gu st 2 0 17 , the Res p o nden ts is sued a writ of p os session 1n en fo r cem en t of t h e Judgm ent directed at the following pro p erties : (1) House No . 39, Ndola Roa d , Mufulira (2) House No. 4 Kumasi Roa d , Mufu lira (3) Plot No . 189 , Freedom Way , Mufulira The S h e riff a c cord ingly seized t h e p r operties togeth e r with Lh e house hold good s which w er e fou n d th e r eon. On 11 th S e p te rn b e r 2 01 7, the 2 nd App e lla nt, a s h a re h o ld e r a n d director in the 1 s, Appe lla nt , filed a notice of claim in r espect to prope rties ( 1) a nd (2 ) a bov 0 s tated. T h e n o tice wa s a ccom pan i ci b y a n int r pka ci c r s umm o n s with an a ffid a vit in su p po r t . Exhib ited in Lh c a ffidav it \H're Lh c follo win g doc un1cn ts : (l) A pow er of clttorney b\· t h e 2:1 c! Appe lla n t in ravo u r or \1 1('11, t<: l Andr \\. !J aka i 11 \\·h ich t he 2 11 " Appe l Ia n t ~: , 11 eel t hn l he o\, ·11--; Hou se No . 4 l, u rn a s i Road. Mu fu lira an.cl 1l 1itl. since h e Iii!~ 110 I ' -J 3- bank account in Zambia, h e direct ed that, the tenancy be drawn in the name of the 1st Appellant. (2) Certificate of title numbe r 7971 r e lating to Plot No. 707, Mufulira in the 2 n d Appellants name and a note from Mufulira Dis trict Council forwarding the said certificate t o the 2 nd Appellant's Advocates. In opposing the a pplication, the Respondents averred that, no proof h a d been shown that House No . 4 Kumasi Road , Mufulira is owned by the 2 n d Appellant. The Responde nts went on to exhibit a rates statem e nt from Mufulira Municipal Council , dated September 2017 which showed that the property was registe r ed in the name of the 1st Appellant. As regards House No. 39 Ndola Road, Mufulira, t h e Res pondents produ ced a la nd s a nd d eeds print out, dated 3 0 th December 2015 , showing tha t the prope rty belongs lo Mufulira To v.rnship l'vlanagemen t Boa r J. In reply, the 2 nd Appe lla nt a ve r red t h a t , Hou se No. 4 Ku masi Road , Mufulira is a lso known as Plot No . 6 6 8 Mufulira a n d be longs to t he 2 nd Appellant and lo th at e ffect p rodu ced a lands and d eed s pri nt out s h owin g a third -pa rty m o rtgage regis t e red in fa vour o f In du stria l Cred it Co1npany Limi ted whi c h \\·as subs'"'q uc ntly by d eed of ass ig nm e nt o f d bt and s ecurity o n 23 rd Septe mbe r 2 010 assig n ed lo Africa .-\lpha Rea li sat io n Limite d . .--\ftc r con s ide ri ng th e afficl,n·11 c\·iclcnce a n d ackn o wl ciuino b ~ 1 he principle of s ep aratio11 of legal c11titics as h e ld in t h e case of S a lomo n v Salomo n 1a nd referring to O rcl<'r 7 I of The Rules ojThe Supre m e -J 4- Court1(RSC) and Order 4 3 of The High Court Rules2and also the ca s e of Richard v Jenkins2where it was held inter alia as follows: "The burden of proof is on the claimant to prove his title to the goods or the pos s es s ion thereof at the time of seizure. If he can only show that they belonged to a third p e rson the ex ecution creditor is s till entitled to succeed. '' The learned Judge in the court below, then went on to interrogate the d ocumentary evidence in r e spect to ea c h of the two propertie s in issu e . As regards House No. 3 9 Ndola Roa d , Mufulira, the le arne d Judge m a d e a finding that, although the 2 nd Appe llant w as cla iming tha t the prop erty is a lso known a s Plot No . 707, Mufu lira, ther e was n owher e in the d ocuments which we r e produced by the 2 nd Appellant whe r e it show s that Plot No. 7 0 7 Mufu lira is o n e and t h e saine as House No. 39, Ndo la Road, Mufulira. Where as on the other hand , t h e Resp o n d e n ts h ave in th ir affidavit in uppositio n exh ib ite d a la nds a n d d eeds printou t r elating to proper ty nu m ber 39 Mufuli ra , s h owing th a t the property is in t he nam e o f Mufulira Tow n sh ip Ma nagem e nt Board a n d hns a cer tificate of title No. 2362 a nd not 767 1 as a l1eged by the 2=·d Appella nt. . As regards Hou se No. 4 , Kumasi Road , M ufu lira, th e lear ned J u dge ,,·,1s of the view that the ]=w Appella nt had not produced proof of o,,·11crship. Wh e reas o n t h e o th e r h a nd th e Respon d e n ts produc('d ct r;_11es statem e nt s h owi n g that the propcrt_\· \\'h ich is also known as Plo t t>(>K :Vlufuli r a be lon gs to the 1,_· .,.\ppcllant. Tlw lea rn ed Judge then refci-rt·cl 1 o the lands and deeds p rin l c >ll l .tp 1wa rin g at p,1ges 1 17 - 1 18 of the rn·orcl of :lp p c·al (the record) ;1:1d I ' . I\ -] 5- referred to the assignment of the debt and security and opined that the property is now held and belongs to Africa Alpha Realisation Limited and not the 2 nd Appellant. The learned Judge dismissed the 2 nd Appellants claims for being destitute of merit and ordered that the seized properties vest in the Respondent as they do not belong to the 2 n d Appe llant. Disenchante d with the Ruling, the Appellants have a ppealed to this Court advancing two grounds of appeal couched as follows: (1) That the learned Judge erred in law and fact when h e faile d to distinguish b e tween house numbers a s designated by the loca l a uthorities and stand numbe rs as design ated by the Ministry of Lands. (2) That the learn e d Judge erred in law and fac t wh e n h e uphe ld th e granting o f th e writ of p oss ession which d o n ot belong to the Judgment d e btor. At the h e a ring of the a ppeal, b o th Mr. Kae la . Couns e l for the Appe lla nts and Mr. S ichone, Coun se l for the Resp o nde n ts re lie d on the ir respective h eads of a rgume n t. In a rguing the first g round of a ppeal, the Appellants implored t hi s Co urt to take jud ic ia l notice of t h e facl that hou se n um be rs as desig nated by local a utho rities and stand nu mbers as desig nated by Min istn· of Lands a rc diffe re nt. That the lea r ned ,Judge [ru le d to take j u dic ia l notice of s u c h n otorious fact. .-\ s rcgcirds the S('C'ond ground o f appeal. 1t ,,·as subn1 itted that. it is t rilt' la,,· th at executio n o f Jud gnH·11ts can onh· lw done o n propc rt_\' -] 6- which b elon gs to the Judgm ent debtor and n ot any othe r r a ndom third p arty 's prop e rty a s s u ggest ed by the learned Judge. In resp on se t o the first gr ound of a ppeal, it was submitted that, the learne d Judge dis tinguis h ed the proper ty numbe r s for the local a uthority against those d esign a ted by Ministry of La nds a nd did categorically differe ntia t e th e same in p assing his Ruling . That h e took judicial n otice of facts in th e m att er and a bly e la b or a te d as to wh at number s are as p er Ministr y of La n ds and wen t furt h e r t o analys e th e evide n ce a dvanced b y th e p a r ties. In respec t to th e s econd ground of app eal , it was su b mitted th a t th e le a r n ed Judge evalu a te d th e evide n ce adva nce d by th e parties and r efe rre d to a n umb e r of authorities which guid ed hi m in a rrivin g a t th e decision. We have carefully co n s ide red th e s u b mis s ion s by Couns e l a nd the Ruling be ing im pug n ed. In our view , the tv.:o g rounds o f a ppeal are inte rtwin e d and we s h a ll th e re fore a ddre s s t h e m as o~e . Th e issu e t h ey raise is wh eth e r th e two properties whic h were lhe s u bject o f th e \\Tit of po s s ession belonged to lhe _2 :,.i .-\ppcl la nl a nd wh e the r t h e 2 nci Ap pe lla n t d is c h arged tha t bu rd "'n of p roo f. Th e start in g po int in a dd ressin g th e issu e is Orde r 17 / 5/ 12 (RSC) whi h sc ls th e requ isi tes as fo llo ws: ( 1) Th e burden of proo f is on t h e claim a nt to pr<>\"C' his tit le l o the goods or to tile possess io n the reo f a t t he unw o ! seizure. (J.l If he cc111 <>11h· sho\\. t ha t they be lo n ged tc i il third pcr so11. t he cxccuLJon c n·cli tor is s ti ll entit led t o s u nn·d . . I '· -] 7- Richards2 case the ex ecution creditor can defeat th e claimant by showing that there is a b e tter title to the goods in a third p arty. (3) The claimant need not prove that the goods are his absolute proper ty; it is sufficient if he s hows a right to possession or s u ch title or interest in the goods that the s h eriff ought n ot to h ave seized them. (4) Where the cla imant h as only an equity of r ed emption in the goods, h e proves a sufficient interest to entitle him to su cceed in the issue as against th e execution creditors, the mortgagee not being a p a rty as was h eld in the case of Usher v Martin3 . Although the learn ed Judge did not specifically sta te that there 1s a distinc tion b e tween house n umbe r s as d esign ated by the local a u thority and stand numbers as des ignate d by the Ministry of Lands , a perusal of the Ruling being impugned clearly s hows that the learned Judge was alive to that fact. The learned Judge examined certificate of title num ber 797 1 which was produced by the 2 nd Appellant in relation to Plot No. 707, Mufulira and made a finding that it did not show that the same relates to House number 39, Ndola Roa d , which was seize d by the Sheriff. The Learned Judge was of the view that , in as much as a certificate of title is proof of ownership in accordance wi th Section 33 of The Lands and Deeds Registry Act3 , the 2:.,: Appellant h ad on l_v proved that he 1s the 0\\ ·11c r of Plot No. 707 Mufulira \\·h1ch propcrt_Y, \\·as n ot in issue . The !('c1r11nl Judge o pined that th<: J. ·: ,-\ppc llant had not cr1 llcd ,111,· c,·id c· 1HT to sho,,· that he o,,·n<.; ll ousl· No. ]CJ. ;\;clola Road , Muful1rtt upo n ,,l1wl1 execution wa s l<',·1<·d. , , I -J 8- W e agree with Counsel for the Appellant that street house numbers d o differ from property numbers provided by the Ministry of Lands. However , there is evidence on record by way of a lands and d eed s printout at page 3 of the record of appeal which added more to the confusion in the matte r , that there is a lso a property known as property number MUF / 39 1n the name of Mufulira Towns hip Management Board. This property according to the printout has a different certificate of title number 2362 and acreage. Furthermore, the 2 nd Appellant conceded that House No. 39, Ndola Road, Mufulira which was seized was in the n a me of Mufulira Township Manageme nt Board, who according to t h e 2 nd Appellant were the previous owners of the property. The 2 nd Appellant fa iled to prove that Plot No. 707 Mufulira is the sam e as House number 39 , Ndola Road Mufulira and that House No. 39 , Ndola Road , Mufulira which was se ized be longed to him. Th e burde n was on the 2 nd Appe lla nl lo prove his title to the goods or to the possession thereo f at th e time of seizure, whic h b urde n lie failed lo disc harge. We see no basis Lo fault the le a r ned Judge fo r his finding on this prope rty . \V e now turn lo House o. 4 I~umasi Road , Mufu lira . The lea rned Judge found that the 2 m: Appella nt h a d not produced a n v ce rtif'i calc or titl e lo show proof of o wn e rship . I I<' ho,,·eve r ackno,,·Jcclgecl from the r t1 lcs st atemc-n t t hat th e propcrt ,. 1 <-. a iso k no wn as property numlwr \l l . F / b68 a ncl be lo n gin g l o till· l .\ ppcl la nt as sho,"·n a t page 11 2 o f tl : l rec ord. ,, -J 9- However, the learned Judge went on to consider the lands and deeds printout at page 117 of the record which showed that the 1st Appellant and the 2 n d Appellant and Mufulira Central Bakery Limite d obtained a third-party mortgage from Industrial Credit Company Limited which was secured by House No. 4 Kumasi Road, Mufulira. That later on, Industrial Credit Company Limited transferred the d ebt and security to Africa Alpha Realisation Limited by way of a deed of assignment of debt and security. The learned Judge then made a finding that th e property is now h eld by Africa Alpha Realisation Limited and not the 2 nd Appellant. Entry number 4 on the printout shows that this property is owned by the 2 nd Appellant who holds certificate of title number L3466. Entry number 5 s h ows that the property was mortgaged to Industrial Credit Company Lin1ite d who subseque ntly assigned the d e bt and security lo Africa Alpha Realisation Limited . \tVhat therefor was assigned was the debt a nd security and not the property. The find ing by the court be low tha t the prope r ty is now h e ld by Africa Alpha Realisation Limited and not the 2 1: d App ]!ant is th e refore pen-crsc as it is against the evid e n ce on reco rd. The learn ed Judge therefore e rred by holding that the prope rty be lo n ged to a third party. H o us e No. 4 Kumas i Road , Mu fulira bC'lo n g s to th e .2 nd Appellant wh o has ;. 11 1 equity of redemption in the p ro perty . Th e 2:,,' .-\ppellant sh o\\·ccl proo f of a suffic ie nt inte rest to ent itle h im to sun-cecl against t he.· Rt: spo11 cl c nt. This property shoul d tlic r('fo rc n ot h a\·c· been a s u bj cc l or sc 1/.t11 <' l)\· th e S h e riff. I ' l -J 10- The sum total of this appeal is t h at it partially succeeds. House No . 4 Kumasi Road, Mufulira, also known as property No. MUF /668 shall forthwith be released to the 2 nd Appellant together with the household goods seized therein , if any. Each party shall bear its own costs. J . CHASHI COURT OF APPEAL JUDGE F . M. LENGALENGA COURT OF APPEAL JUDGE M. J . SIAVWAPA COURT OF APPEAL JUDGE I I l