Elias Tembo v Beauty Moyo and Ors (APPEAL/34/2018; SP/006/2022) [2023] ZMCA 412 (15 March 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) SP/006/2022 APPEAL/34/2018 BETWEEN: ELIAS TEMBO AND BEAUTYMOYO ATTORNEY GENERAL 2ND RESPONDENT EDDIE WEBBER SAMBWA 3RD RESPONDENT CORAM: KONDOLO, SIAVWAPA, SHARPE-PHIRI, JJA On 18th May, 2022 and 15th March, 2023 For the Appellant: Mr. S. Mutale & Mr. of Messrs FM Legal Practitioners; and Mr. M. Mwape of Messrs L. J. Michaels Legal Practitioners For the 1st Respondent: For the 2 nd Respondent: Mr. C. Mulonda & Mr. T. Mudenda No Appearance of Attorney General's Chambers For the 3rd Respondent: Mr. A Mbambara of Messrs A. Mbambara Legal Practitioners RULING Kondolo SC, JA delivered the Ruling of the Court R2 of R22 CASES REFERRED TO: 1. Hermanus Phillipus Steyn v Giovanni Gnecchi-Rusoone Civil Application No. 4 of 2012; [2012] eKLR 2. Bidvest Food Zambia Limited & 4 Others v CAA-Import & Export Limited SCZ/08/038/2018; Appeal/4/2018; ZMSC 166 (06 August 2020) 3. Lusaka City Council and Another v Grace Mwamba & Others SCZ/121/1999, STATUTES & PUBLICATIONS REFERRED TO 1. Court of Appeal Rules, Statutory Instrument 65 of 2016 2. The Supreme Court Practice (White Book), 1999 Edition 3. Black's Law Dictionary, 9TH Edition 1. INTRODUCTION 1. 1. The parties earlier appeared before this Court on an appeal from the High Court in a matter involving a land dispute. 1.2. We entered Judgment against the Appellant on 19t h March, 2022. The Appellant proceeded to file a motion for leave to appeal to the Supreme Court pursuant to section 12 (2) and 3(A) of the Court of Appeal Act No. 7 of 2016 and Order XI Rule 1 (1) of the Court of Appeal Rules, S. I. 65 of 2016. .- 2. APPELLANT'S AFFIDAVIT & ARGUMENTS R3 of R22 2.1. The application was supported by an affidavit sworn by the Appellant, in which he attested that he wished to appeal against several holdings of this Court to the Supreme Court. 2.2 . The Appellant drew the Court's attention to the attached exhibits marked "ET5" and "ET6", which were copies of the proposed Memorandum of Appeal and Notice of Appeal. 2.3. He attested that the proposed grounds of appeal raise points of law of public importance. 2.4. The Appellant filed skeleton arguments in which he submitted that the intended appeal had met the threshold set out in section 13 (3) of the Court of Appeal Act for the granting of leave to appeal. It was opined in that regard that the appeal raised a point of law of public importance which requires consideration by the apex Court and that there was a compelling reason as to why the appeal should be heard and that the appeal had good prospects of success. 2.5. It was submitted that a point of law of public importance is one that transcends the circumstances of a particular case so as to have more general significance. That it must be an important question of law which takes into account the well being of society. The Kenyan cases of Hermanus Phillipus R4 of R22 Steyn v Giovanni Gnecchi-Rusoone Civil Application No. 4 of 2012 Court of Appeal, Kenya and Bidvest Food Zambia Limited & 4 Others v CAA-Import & Export Limited SCZ Appeal No. 4 of 2018 were cited in support of the submission. 2.6. The Appellant further submitted that this Court misapprehended the law on the efficacy and relevance of a certificate of search issued by the Lands and Deeds Registry. 2. 7. That it was necessary for the apex Court to pronounce itself so as to guide members of the public on whether a certificate of search issued pursuant to section 23 of Chapter 185 of the Laws of Zambia is proof that the Respondent complied with land acquisition procedure. According to the Appellant, this was novel. 2.8. The Appellant indicated that h e intended to appeal to the Supreme Court against the whole judgment of 20th January, 2022 on seven grounds, with ground 1 described as the anchor ground; 2. 9. Ground 1 was that this Court erred in law and in fact when it determined matters relating to the 3 rd Respondent and decided in his favour in the absence of an order for leave from th e High Court (217/HP/0764) wh erein the matter i was dismissed against him and in the absence of an order and proceedings for joining him to the appeal gracing the RS of R22 record of appeal. 2.10. The essence of the argument was that the lower Court had delivered a ruling removing the 3 rd Respondent from the proceedings and this Court had no jurisdiction to join him to the appeal because the High Court order was still subsisting and had not granted him leave to be joined to the appeal. 2.11. Ground 2 and ground 6 were presented together; Ground 2 - This Court erred in law and in fact when it held to the effect that the Appellant failed to prove and/ or any form of impropriety when the evidence on record shows that none of the Respondent's purported offer letters were supported by an application for land as provided for by law. Ground 6 -The Court erred in law and in fact when it held that an off er letter in favour of the 3 rd Respondent satisfied all conditions and that was why he was issued with a Certificate of Title notwithstanding the uncontroverted evidence on record showing that the mandatory procedure provided for by law in land acquisition was not followed by any of the Respondents. , 2.12. It was submitted under these two grounds that the R6 of R22 procedure set out under Circular No.1 of 1985 is mandatory and strict. One cannot therefore abrogate this procedure without consequences. That this is why the issue raised under grounds 2 and 6 is extremely significant to members of the public. 2.13. Ground 3 was to the effect that this Court erred in law and in fact when it made a finding of fact as to the credibility of the appellant on grounds of comparison of receipts appearing on pages 315 and 433 of the record without considering the fact that the receipt at page 433 was irrelevant for the purposes of the matter before Court. 2.14 . According to the Appellant, the receipts had disclaimers and therefore , no weight of evidence should have been attached to them and this Court ought to have treated them with a pinch of salt. 2.15. In Ground 4, it was submitted that this Court fell into grave error when it endorsed the evidence of DW 1 that Charles Lububi was never offered stand No. Lus/24399 notwithstanding that evidence on record shows that the said Charles Lububi was duly offered stand No. 24399, Lusaka and that this piece of evidence remained unchallenged at R7 of R22 trial. 2. 16. It was postulated that this Court should not have brushed aside the offer letter to Charles Lububi on the extrinsic evidence of DW 1 because the offer letter graced the Court record fallowing discovery. 2.17. Under ground 5, it was submitted that this Court erred in law and in fact when it held that no evidence was called to prove that there was an advert when unchallenged evidence on record asserts that there was an advert by the Lusaka City Council on page 311 of the record of appeal. 2.18. It was submitted that this finding of fact was perverse, thus warranting that leave to appeal be granted. 2.19. Ground 7 stated that this Court grievously erred in law and fact when it held that the Appellant is a squatter notwithstanding evidence on the record that the Appellant has legitimate claim to stand No. 24399 Lusaka. 2.20 . The Appellant reasoned that he was a proper owner 1n possession of an off er letter and he can the ref ore not be denied compensation as a squatter would. 2.21. Ground 8 stated that the Court fell in error in law and in fact when it took issue with dates of the letter of sale and ;, lodgment schedule notwithstanding that the 2nd Respondent R8 of R22 performed on the appellant's application to transfer stand No . 24399 Lusaka as evidenced at page 323 of the record. 2.22. It was submitted that documents from the Ministry of Lands more often than not contain errors and mistakes such as the one highlighted, and we were asked to take judicial notice of this alleged fact. That leave to appeal should be granted because there was an unbalanced evaluation of the evidence by this Court which cast a blind eye to flaws in the documents produced by the 2 nd Respondent such as those in the lands register. 2 .23 . Under ground 9 it was argued that the Court erred when it awarded costs to the 1st and 3 rd Respondent. 2.24. That the 1st Respondent did not deserve to be awarded costs due to the wanton conduct she exhibited during the trial by refusing to appear before court. 2.25 . That this Court had no jurisdiction to entertain any issue arising from the 3 rd Respondent, let alone award costs. 2.26. That the 3 rd Respondents [sic] who wantonly generated four offer letters did not deserve to be awarded costs which amounted to them benefiting from one's own default. 2.27. The Appellant prayed that leave to appeal be granted with R9 of R22 costs. 3. 2 nd RESPONDENT'S AFFIDAVIT & ARGUMENTS 3.1. The 2 nd Respondent filed an affidavit in opposition, which attested that the proposed grounds of appeal by the Appellant do not contain questions of law of public importance. That the intended appeal has no reasonable prospects of success and does not advance compelling reasons for the Supreme Court to hear it. 3 .2. That the Appellant failed to prove fraud on the part of the 3 rd Respondent's certificate of title over Stand No. LUS/24399, Lusaka and that the record will show that the applicant does not have title to the said property. That at pages 37 to 38 of this Court's judgement, the Court observed irregularities in the Appellants documentation , and the law is clear that a Certificate of Title is conclusive proof of land ownership. 3.3. The 2 nd Respondent filed Heads of Argument which expanded on the facts attested to in the affidavit in support and added that the issue raised by the Appellant was not novel and raised no points of law of public importance. That there is nothing further that can be read from section 23 of the . . I Lands and Deeds Registry Act, Chapter 185 of the Laws RIO of R22 of Zambia. 3.4. That there was no compelling reason to grant leave to appeal because the issues raised on appeal related to settled law and the Appellant had merely repeated the arguments that this Court rejected in arriving at the judgment he now wishes to appeal against. 3.5. The 2 nd Respondent also submitted that the Plaintiff must prove his case and the collapse of the defence does not entitle the Plaintiff to succeed. An appellate Court will only reverse findings of fact where they were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts. 3. 6. That the appeal had no reasonable prospects of success because the Appellant failed to provide evidence supporting his claims in the court below and further failed to demonstrate any errors on points of law or facts at appeal stage. 3.7. That it was unavoidable for the Court to address the two receipts bearing the same serial number but different details as they cast doubt on the veracity of the Appellants allegation of fraud against the 3 rd Respondent. 3.8. It was finally submitted that this Court was on firm ground Rl 1 of R22 when it described the Appellant as a squatter because he had no right to build on the land and that costs are awarded at the Court's discretion and the Court was on firm ground to condemn the Appellant in costs. 3.9. The 2 nd Respondent prayed that the application for leave to appeal be dismissed with costs. 4. 3 rd RESPONDENT'S AFFIDAVIT & ARGUMENTS 4.1. The 3 rd Respondent filed an affidavit in opposition in which he recounted the background to this matter. He recalled that he applied to the High Court that the case against him be dismissed on account of abuse of court process and the application was granted but the matter proceeded against the remaining Respondents without him. In the end, the Appellant's claims were dismissed against all the Respondents. 4.2. The Appellant decided to appeal and at that point the 3 rd Respondent applied to this Court to be joined to the action because he could be affected by the outcome of the appeal as he was the holder of the Certificate of Title in respect of the disputed land. It was submitted that this was in line with the . • holding of Simbeye Enterprises Limited and Investrust Merchant Bank (Z) Limited v Ibrahim Yousuf (2000) ZR R12 of R22 159. 4.3. That this Court exercised its inherent jurisdiction to join the 3 rd Respondent to the proceedings and, if aggrieved , the Appellant should have appealed against this Court's decision to join him to the action. 4. 4. That he followed the correct procedure when applying for j oinder and his application was granted. 4 .5. The remainder of his attestations were similar to those given by the 2 nd Respondent and th eir respective heads of argument were also quite similar. 4 .6. It was submitted that the intended appeal raised no question of public importance, no compelling reason to send it on appeal and brought no novel issue. That the issue of whether a certificate of search is proof of compliance with land acquisition procedure is not new nor does it raise a point of law that would require determination by the apex Court. 4.7. That the Appellant was correctly described as a squatter because the 3 rd Respondent was found to be the rightful owner of the property as the Court found that his off er letter satisfied all conditions and he had a certificate of title. . . , R13 of R22 4.8. That the Appellant had failed to prove that the 3 rd Respondent's certificate of title was obtained by fraud. 4.9. That the Appellant had not provided sufficient reasons to deny the Respondent being awarded costs. 4.10. The 3 rd Respondent prayed that the application be dismissed. 5. APPELLANT'S AFFIDAVIT AND ARGUMENTS IN REPLY 5 . 1. The main focus of the arguments in reply was that the single Judge of this Court lacked jurisdiction to join the 3 rd Respondent to the action because he was dismissed from the matter by the High Court and had not appealed the dismissal. 5 .2 . That the 3 rd Respondent was not granted leave to proceed to the Court of Appeal and the matter was thus improperly before this Court because leave goes to jurisdiction. 5 .3 . That the proceedings before the single Judge of this Court were a nullity and so was the ruling and they both amounted to nothing. 5.4. That only the Supreme Court can resolve the current situation, which is why leave should be granted. 5.5. It was further submitted that according to the case of Lusaka City Council and Another v Grace Mwamba & Others . • i R14 of R22 SCZ I 121 / 1999, any title issued in breach of government Circular No. 2 of 1996 should be cancelled. That contravention of Circular No. 1 of 1985 should attract the same sanction. 5.6. The Appellant prayed that the application be allowed. 5 .7 . HEARING 5.8. At the hearing, the Appellant's Counsel indicated that reliance would be placed on the Heads of Argument but they wished to augment ground one on the jurisdiction of the single Judge. 5.9. Mr. Moono on behalf of the Appellant submitted that ground one met the threshold to be a point of law of public importance. 5.10. We asked Mr. Moono whether he had seen the Ruling of the single Judge delivered on 20th August, 2018 and he said he intended to address the Court on it. 5.11. He said h e was cognizant of the reasoning in the ruling and submitted that the Court misdirected itself because the Respondent was still shackled by the High Court Ruling which removed him from these proceedings. 5.12. Learned counsel thereafter advanced several arguments justifying his opinion that the Court lacked jurisdiction to i join the 3 rd Respondent to the proceedings. We shall not R15 of R22 repeat his arguments for reasons that shall become clear. 5.13. He opined that the 3 rd Respondent was a former party who the Court should not have joined to the proceedings by merely applying Order 59 Rule 10 Sub-rule 8 RSC to this . unique scenar10. . 5.14. He amplified that this was a unique procedural question on joinder of parties that seek to rejoin matters in which they had already participated, and that the Appellant should be allowed to proceed on appeal to enable the Supreme Court to set the law straight on the procedural issue, which can affect any and all matters before courts of competent jurisdiction. 5.15. Mr. Mudenda on behalf of the 2 n d Respondent submitted that the Appellant's submission simply highlighted his disagreement with this Court's Ruling and he should have utilized the procedure provided under section 9 (b) CAZ and that in any event, Order 59 Rule 10 RSC provides the Court with inherent discretionary jurisdiction to add a party who has demonstrated a legal right to be joined to a matter. 5.16. He opined that there was therefore no point of law of public importance to refer to the Supreme Court. , 5.17. Mr. Mbambara, on behalf of the 3 rd Respondent, submitted R1 6 of R22 that the arguments advanced by Mr. Moo no were the same arguments advance by Mr. Katolo , who represented the Applicant when the Court considered and allowed the application for joinder of parties. That if at all the him was ever shackled, the decision of the superior Court unshackled the 3 rd Respondent from the ruling of the Deputy Registrar. 5.18. That the 3 rd Respondent was in possession of Title Deeds and likely to be affected by the appeal and the Court had inherent jurisdiction to join him to the appeal. That there was no point of law of public importance worthy of consideration by the Supreme Court. 5 . 19. Mr. Moono rejoined by stating that the application before the single Judge was for joinder of parties whilst the point he was raising was with regard to the Court having lacked the jurisdiction to entertain the application for joinder and its continued to lack jurisdiction as it dealt with the appeal. That an issue to do with jurisdiction can be brought up a t any time. 6. DECISION OF THIS COURT 6.1. We have considered the record, the Heads of Argument, as well as the arguments advanced at the hearing. 6. 2. In the first instance, we note that the Motion for leave to Rl 7 of R22 appeal to the Supreme Court was made pursuant to section 13 (3) (a) CAZ only but the Appellant, without leave of Court or amending the motion, proceeded to advance arguments under section 13 (3) (c) and (d). The Respondents, however, raised no objection. 6.3. We shall begin with the first ground upon which the Appellant seeks leave to appeal to the Supreme Court, under section 13 (3) (a) which is the submission that this Court lacked jurisdiction to hear this appeal. 6.4. The Appellant's conclusion in that regard arises from his reasoning that the single Judge of this Court had no jurisdiction to entertain the 3 rd Respondent's application to be joined to the appeal because he had been removed from the proceedings by a ruling of the Deputy Registrar when the matter was in the High Court. 6.5. When Counsel for the Appellant, at the hearing, informed the Court that he wished to augment on this point, we asked him if he was aware of the ruling of 20th August 2018 and he said he was. 6 .6. We were rather appalled when he proceeded to re-litigate the application for joinder of parties. I 6. 7. He attempted to distinguish the application for joinder from R18 of R22 the "jurisdictional" issue he was now raising by insinuating that the issue of jurisdiction did not arise in the application for joinder, as the only thing determined in that application was the merits of whether or not to join the 3 rd Respondent to the proceedings. It was opined that on the other hand, the issue presently before the Court was that the single Judge lacked jurisdiction to entertain that application, and by extension, this Court lacked jurisdiction to proceed with the appeal. 6.8. However, the Ruling onjoinder of parties clearly spelt out the issues before the single Judge and despite learned counsel for the Appellant stating that he was aware of the Ruling, he proceeded as he did. 6. 9. The Appellant, who was the Respondent in the proceedings for joinder of parties, did not object to the application on the merits but raised the argument that the single Judge lacked jurisdiction on account of the fact that the 3 rd Respondent was removed from the proceedings by a ruling of the High Court and there was no appeal against that ruling and the High Court had not granted him leave to apply for j oinder. To use Mr. Moono's language, that the 3 rd Respondent was Rl9 ofR22 shackled. 6. 10. Page R6 of the ruling of 20th August, 2018 records as follows; "At the hearing, Mr. Katolo, on behalf of the Appellant, submitted that the Applicant had attempted to suppress the fact that he was originally a party to the action. He stated that the ruling removing the applicant from the proceedings put an end to his action save for an appeal and if he was indeed desirous of joining the proceedings, he should have asked the lower Court to vacate the Ruling of 26th June, 2017. He opined that the Applicant was trying to reinstate a dismissed matter which by his own action had divested this Court of any jurisdiction to allow him to participate in the proceedings .. ... " (emphasis ours) 6.11. Counsel for the Appellant has failed to distinguish the application for joinder from the ground seeking leave to appeal as they both address the issue of jurisdiction. He is trying to re-litigate the application for joinder simply because his client was unhappy with the outcome. 6.12. The Court considered the question of jurisdiction and R20 of R23 delivered a reasoned ruling. As correctly submitted by Counsel for the 2 nd and 3 rd Respondents, the Appellant should have challenged that Ruling by applying to the full Court of Appeal to vary, discharge or reverse the ruling of the single Judge as provided by section 9 (b) Court of Appeal Act. 6.13. The first ground, the mainstay or anchor, upon which the Appellant seeks leave to appeal is bereft of merit and is dismissed. 6.14. The second ground upon which leave to appeal is sought, is under section 13 (3) (d), that there are compelling reasons for the appeal to be referred to the Supreme Court. 6.15. The Appellant has not pointed to any compelling reason for escalating this appeal to the Supreme Court. 6.16. Lastly, the Appellant submitted, under section 13 (c) that the matter should be referred to the Supreme Court because the appeal has good prospects of success. The said prospects of success are listed in the Appellant's intended grounds of appeal as exhibited in the affidavit filed in support of this application. appeal on the merits. The Respondents were forced to react R21 of R22 in kind. 6.18. We have considered the 9 intended grounds of appeal and find that none of them have any prospects of succeeding. 6.19. We have already determined that the intended ground one on jurisdiction is completely unfounded. 6.20. In the proposed ground 2, the issue of whether a Certificate of Search issued pursuant to section 23 of Cap 185 is proof that the Respondent complied with land acquisition procedure is not novel at all and this Court adequately explains this issue vis-a-vis Circular No.1 of 1985 at page J3 l of the judgment sought to be appealed against. 6.21. The issue of the receipts, incidentally produced by the Appellant himself and raised. under the proposed ground 3, was adequately addressed in the judgment at pages J33 to J35. 6.22. The proposed grounds 3; 4; 5; and 6 were covered in the judgment, respectively on pages J33-35; J36-38; J38 and J35-36. 6.23. The law regarding who is a squatter is well established and the cehtral issue of ownership of the land was comprehensively dealt with throughout the judgment and requires no further explanation as desired by the Appellant R22 ofR22 under the proposed ground 7. 6.24. With regard to the proposed ground 8, our judgment explained why we agreed with the trial Court's findings on the effect of the discrepancies in the dates between the two documents. See pages J37-J38. 6.25. The proposed ground 9 on the 1Ssue of costs has no prospects of success as we found and still find that there is insufficient reason to interfere with the award of costs handed out by the High Court. 6.26. The intended Appeal raises no issues requ1nng further consideration and has thereby failed to meet the threshold for escalation to the Supreme Court required under Section 13 of the Court of Appeal Act and is dismissed with costs to the 2nd and 3 rd Respondents. Leave to appeal is denied. _;, -~···········::t·················· M. M. KONDOLO SC COURT OF APPEAL JUDGE . . . . . . . . . . . . . . . . ................ . M. J. SIAVWAPA COURT OF APPEAL JUDGE '----W. A. SHARPE-PHI I COURT OF APPEAL JUDGE