Elias Tembo v Eleuthrius Mapenzi Chimansa Nyanga and Ors (Appeal No. 303 of 2021; CAZ/08/0429/2021) [2022] ZMCA 134 (22 November 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA F (Civil Jurisdiction) ,,..-'r,IJ' JBl Appeal No. 303 of 2021 CAZ/08/0429 /2021 , lA. M ..---1 ~ 0 . .-- XSCiRT°"of--;;rfF!-91,? ~ JV' '" - • ''Cf'f,-,,0 -- ~: r- v~~ 1 2 2 Nov 2022 I .:st- . . ----- ._ ·:,c~~~~ . ~p_.;, SQQj] ~ _J ~_.,- Appellant BETWEEN: ELIAS TEMBO AND ELEUTHERIUS MAPENZI CHIMANSA NYANGA THE COMMISSIONER OF LANDS LUSAKA CITY COUNCIL ATTORNEY GENERAL 1st Respondent 2 nd Respondent 3 rd Respondent 4 th Respondent Coram: Kondolo, Sichinga and Sharpe-Phiri, JJA on 19th April 2022 and 22nd November 2022 For the Appellant: For the 1st Respondent: Ms. D. Chisenga-Lumbwe & Mr. M. Chunga of Messrs K. Mwale & Company Mrs. L. S. Tembo of Messrs M. L Mukande & Company For the 2nd and 4 th Respondents: Mr. P. Shampulo, Principal State Advocate of Attorney General's Chambers No appearance For the 3 rd Respondent: RULING Sharpe-Phiri, JA-, delivered the ruling of the Court Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 of Act No. 7 of2016 of the Laws of Zambia. 2. The Rules of the Supreme Court of England, 1999 Edition (White Book) 3. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia RI The appellant filed a n otice of m otion on 25th Octob er 2022 for a n order dismiss ing proceedings in this Court and the Court be low for want of jurisdiction pursu ant to Order XIII Rule 5(2) of the Court of Appeal Rules of the Court of Appeal Act, No. 7 of 2016 as read with Statutory Instrument No. 65 of 2016 1 . The notic e h as been b r ou gh t on the footing of deter m ina tion of three points of law as follows: 1. Whether or not the Local Court was clothed with jurisdiction when it attempted to grant letters of administration to Christ etta Chimansa on 11th November 2004 who in turn pursuant to the aforesaid botched letters of administration bequeathed the said property to the 1st Respondent herein on the 30th December 2004; 2. Whether or not the 1st Respondent has sui juris and/ or locus standi to commence these proceedings in the High Court on 12th August 2020 based on a botched grant of letters of administration obtained by Christetta Chimansa on 11 th November 2004 from Local Court by Christetta Chimansa on 11th Novem ber 2004 from Local Court; and 3. Whether or not this Court ought to dismiss these proceedings as well as the proceedings in the High Court under Cause No. 2020/HP/0900 for want of jurisdiction. R2 The background of the matter is that the 1st respondent commenced proceedings against the appellant under Order 113 of the White Book 1999 Edition2 seeking summary possession of Stand No. 24400 from the appellant. The application was commenced by originating summons supported by an affidavit. The appellant then objected to the mode of commencement of the action by the 1st respondent by filing summons supported by an affidavit challenging the said action but the trial Court refused to grant the appellant's application and instead opted to treat the action as though it had been commenced by way of writ of summons. Subsequently, on the 2 nd September 2021, the appellant raised a preliminary issue on whether or not the matter ought to be dismissed for being statute barred following which the Court, presided by Yangailo J. rendered its Ruling on the 21 st September 2021 which Ruling is the subject of Appeal before us and yet to be determined. While the appeal pends determination, the appellant has now raised the issues of law by notice herein seeking for an order to dismiss both the appeal proceedings herein and proceedings in the Court below for want of jurisdiction. In the affidavit in support of the notice deposed by the appellant of even date as the notice of motion, the appellant contended that the proceedings in the Court below and subsequently under this appeal R3 were based on letters of administration granted to Christetta Chimansa on 11 th November 2004 which consequently led to the said administrator bequeathing the Stand 24400, Lusaka to the 1st respondent. He added that the Local Court h ad no jurisdiction to grant letters of administration to estates in of immense value as in casu exceeding K200,000 hence the strength on which proceedings for possession for the subject where commenced in the Court below were a nullity and ought to be dismissed accordingly. In rebutting the appellant's contention, the 1st respondent filed an affidavit in opposition on 1st November 2022 in which he deposed that the appellant had no locus to challenge the appointment of his late mother's estate as he h ad no interest in her estate nor a beneficiary thereunder whatsoever. He also added that this Court has no jurisdiction to entertain matters of succession unless on appeal. The 2nd and 4 th respondents also filed an affidavit in opposition deposed by Namukale Simunyola, Acting Senior Lands Officer at the Ministry of lands in which she deposed that contrary to the appellant's assertion that the Local Court had no jurisdiction to grant letters of administration as it did in casu, the correct position was that the Local Court was clothed with jurisdiction to proceed in the manner it did as the consideration fee for the subject property at the time was only Kl0,000 which was well within the jurisdictional limits of the Local Court. R4 We have taken the opportunity to consider pleadings filed in the Court below and evidence in con test before the High Court. This Court is also alive to the salient provisions of Section 33 of the Lands and Deeds Registry Act3 which in part provides that 'Certificate of Title shall be conclusive as from the date of its issue and upon and after the issue thereof, notwithstanding the existence in any other person of any estate or interest. .. ' Given that this motion seeks to touch on issues of fact which are subject of determination on merit in the trial Court below; particularly issues around grant of letters of administration and issuance of Certificate of Title for the subject property, we take the view that this notice of motion is an attempt to prematurely prejudice, pre-empt and undermine the proceedings in the High Court. Furthermore, the determination on the validity or otherwise of the letters of administration and propriety and procedure of grant of Certificate of Title by the Ministry of Lands are factual issues that should be determined by the trial Court before they can be subjected to review on appeal. We must add that parties should not be encouraged to raise jurisdictional issues in the manner that the appellant is attempting to do before an appellate Court but they should rather make all reasonable endeavors to do so in the trial Court. For the foregoing reasons, we find no merit 1n the appellant's motion, and dismiss it forthwith. RS Costs to the respondents, to be taxed in default of agreem en t. · ::,. M. M. Kondolo, SC COURT OF APPEAL JUDGE , nga, SC PEAL JUDGE ~ pe-Phirif' COURT OF APPEAL JUDGE R6