Bishop Emmanuel Milingo v Zambia Helpers Society and Anor (2018/HP/ 1455) [2022] ZMHC 57 (4 August 2022)

2018/HP/ 1455 I-±OLDEN . AT LUSAK1l {CIVIL J URISDICTION) B E Tl. MEEN: D E LUX DE RICK CHILUlVIBU BEFORE HON. JUSTICE ELITA PHIRI IVIWIKISA FOR THE PLAINTIFF: MR C. BANDA (S C) , MR B. KAS OTE & MS . S . PHIRJ OF MESSRS CHIFUMU BANDA & ASSOCIATES FOR THE 1 8 T & 2ND DEFENDANTS: MR M. C . SITALI OF MESSRS ELLIS & COI\/I?ANY JUDGMENT Cas es Referred To: 1. Charles Kajima.nga v Ivlarmetus Chile1nya /20 16} ZMSC 189 2 . Anderson Karnbela Maz o/ea & Others v Levy Patri.ck 1'/Jwanawasa & Others (2 005) ZR 138 3. Hanif Mohammed Bhura (Suing pursuant to a Power of A ttorney) v. Yusuf lbrahin1 Issa Ishmail Appeal JVo. 14 6/ 201 3 4. Attorne y Ge neral us. Jilfarcus Kampumba Achiume (1983) ZR 5. Sablehand Za n1bia Limited v. Zambia Revenue Authori.ty 6. S1n.ith Saiuila v Attorney General and Anoth er Appeal No. I of 7. . AnJ\-Corruption Con11nission v J3arnnet Development Corporation Lim.ited (2008) 1 ZR 69 8 . Corpus Legal Practitioners v l\llwanandani Holdings Limited SCZ Judgment No. SO o/2014 9. Charles Marnbwe and Others v .lVIulungu.shi Jnvestn1ents Liinited (in liquidation) and Another Selected J-udgment No .. 3:: of.2016 10. Philip Mutantika and Another v Kenneth Chipungu SCZ Appeal lVo.94 o/2012 11. Jo e)s Earthworks and Mining Limited v F'la1ne Pro1notions and Promoters and Another 2017/I-IP/0262 12. Lusaka West Develop1nent Company Lin1.ited and Others v Turnkey Properties Limited 13. B a rclays Bank v ERZ Holdings Ltd and Others (2012) ZJVISC This m atter wa s commenced by way of VJTit of summons supported by a statement of claim dated 27 th August, 2 018. The amended writ of su mmons a nd statement of claim are dated 24 thJ une, 2020. The Pla intiff pleaded that he is and was at all material times the register ed own e r of Subdivision B of Farm No. 456a, Lusaka and Subdivision C of Farm No. 456a, Lusaka, (hereinafter referred to as the properties) while the 1 st defendant is a body corporate established under the Land (Perpetual Succession) Act, Chapter C' ' 186, of the Laws of Zambia. The Plaintiff's claim was that in about 2010, he vvas unlawfully expelled fro1n the Board of the 1 s t d efendant contrary to the C onstitution of the 1 st defendant. It ,Na s a lso p lead ed therein that the 1 st defendant also prepared and com p leted Deeds of Gift (deed sj relating to the properties 'vVithou t t he con sen t of the Pla intiff. The Plaintiff stated that the 1 defen d ant, 'iNithout the aut horization of the Plaintiff, registered tl---1 deeds on 5 th May, 2003, and on 17th January, 2010. That by virtue of his expulsion and the fraudulent transfer of h i~ property, the Plaintiff commenced an action in the High Court t c challenge the fraudulent deeds and the purported transfer of ownership of the propertie s to the 1 st defendan. t. The p articulars of the fraud were as follows: (i) The Pla intiff did not sign the deeds that purported to transfer th e property to the 1 st defendant. The Plaintiff had no inte ntion of gifting his properties to the 1 st defendant. (ii) The 1 s t defendant, without the consent of the Plaintiff procured the preparation and execution of the deeds with ( the intention to deprive the Plaintiff of his property. The Plaintiff further pleaded that unknovvn to the Plaintiff, the matter was referred to m ediation and through a Mediation Consent Settlement Order dated 18th September, 2015, the 1s t defendant a nd 2 nd d efendant executed the Mediation Consent Settlement Order , v.rhich stated that the properties vv~ould remain registered in the 1 st defendant. The Plaintiff n arrated t h at the Mediation. Consent Settlem.ent Order further provided tha t the Piaintiff v\rould ren-iain as Trustee of the 1 st defendant and vvould be granted accon1rr1odation in Woodlands ·with liberty to request that title to the house be registered in his na1.ne. The Plaintiff pleaded that the 2 11 d defendant \;vas not given any consent or authorization to s ettle the a llegations and had no authority to act on behalf of the Plaintiff at the Mediation and that the 2 nd defendant disguised himself as having authorization to represent the Plaintiff and the consequence of his presence and consent to the settlement resulted in the Plaintiff losing his properties to the 1 st defendant. That in the premises, the lVIediation Consent Sett.lenient Order is null and void. The Plaintiff now cla ims: (. An order setting aside the Me diation Consent Settlement Order of 15th September, 2 015, on grounds that the said settlement was made without the consent of the Plaintiff and the Plaintiff did not execute the said agree1nent; an order that the expulsion of the Plaintiff as Trustee of the 1 s t defendant is null and void; an order that the deeds of gift relating to the remaining extent of Subdivision B of Farn1 No. 456a, Lusaka an.d Subdivision C of Farm No . 456a ) Lusalca are null and void because the said deeds ,Nere fraudulently (:::xecuted and regi::-::tered; an order of cancellation of certificates of title relating t o Subdivision B of Farm No. 456a and Subdivision C of Farm No. 456a, Lusaka on the grounds that they were registered on deed of gift p rocured by fraud; costs of a nd incidental to this action; and any relief that the Court n1ay deem fit. The 1 s t and 2 nd defendants on the other hand entered conditional ' ' memorandum of appearance dated 10th September, 2018, and later a defence dated l lt11 October, 2018. The defendants averred that th e Plaintiff \Vas not the registered owner of the properties h erein a s they \vere under a deed of gift transferred to the 1 st d efenda nt by the Plaintiff himself. That the Plaintiff voluntarily gifted lhe properties to the 1 s t defendant. It was also averred that the issue of the d eed of gift was at some point a subject of criminal investigations but that no one has ever been a rrested for the same < b ecause there was no fr a ud as alleged. The d efendants averred that contrary to the assertion that the Plain tiff was at all times a Trustee and Chairman of the Board of the 1 st defendant, the Plaintiff ceased to be a member of the 1 st defendant having been so r emoved or expelled by the Board of the 1 ~t defendant. JS The d.efendants also denied the allega tion that the 2 nd defendant h ad no authority to sign fo r or on behalf of the Plaintiff as the authority was expressly given to him as \Arell as to the Plaintiff's former advocates, Messrs O.lVLlVi Banda and Associates. It was also averred that the Plaintiff is not in a state of mind to commence this action and that the defend ants shall accordingly make an application to have the Plaintiff's mental state examined by fr qualified personnel. That on the basis of the forgoing, the Plaintiff was not entitled to the reliefs claimed. When the matter came up for trial on 30th November, 2020, PWl; the Plaintiff herein, told the Court that he founded the 1 st d efendant and that h e is currently still running it. PW 1 testified that h e a lso created the sisters of the Redeemer. PW 1 stated that the l 81 defendant was autonomous and that it did not have any other trustees apart from him. In this vain, he stated that he knew Chiwara Phiri, the Chair1nan of the 1 st defendant but that he did not know Majula (both Phiri and Majula signed as trustees on the deed of gift). PW 1 referred to the deed of gift relating to the remaining extent of Subdivision C of Farm No. 456a. , Lusaka: at page 10 of the Plaintiff's bundle of documents and testified tl1at he did not remember giving the property to the l st J6 r. - dcic, 1d_ant as a gift and fi_1 rther that he d id not sign the said - docu1nent as s hov\rn a t page 14 of the Plaintiff's bundle of docurncnts. Further that there is no signatory of the notary public on the same docu1nent. In relation to the affidavit of confir1nation of signature at page 22 of the defendants' supplementary bundle of documents, PWl told the Court that the said affidavit is dated 7 th April, 20 11, and that he did not know anything a bout it. He testified that he did not reca ll Bertone s igning the deed of gift. PW 1 was referred to the letter at page 2 1 of the defendants' supplementary bundle of do cuments a nd testified that the said letter dated 21 st July, 2010, sho\Ns that h e questioned th e validity of the deeds of gifts. Further that the said letter questioning the validity of the deeds vvas written before the affidavit of confirmation of signature dated 7th April, r. 2011. PW 1 also told the Court that the deed of gift at page 25 of the Plaintiff's bundle of documents is betvveen the Plaintiff and 1 st defendant and that it relates to the remaining extent of Subdivision C of Farm N·o. 456a, Lusaka . PV✓ l testified that he did not recall giving the said property as a gift. That t he said deed was also J7 signed by Phiri and Majuls. as trustees but tl1.at th e tViro were not tr1..1stees. PW 1 further testified that he 'Nas not a,Nare of the IV1ediation Consent Settlement Order at page 30 of the Plaintiffs bundle of docu1nents and that he was a lso not aware that the 2 nd defendant s igned on his behalf. PW 1 also denied signing the gratuitous loan between him and the 1 s t defendant. In relation to the expulsion, PW 1 testified that he \Vas never expelled from the 1 st defendant except that he had multiple duties. Under cross-examination , PW 1 testified that he ,;vas never expelled from th e 1 :-,t defe ndant. PW 1 also testified that the 2 nd defendant is his cousin. P\A/ l testified that he was not aware of the mediation s ettlem ent and that h e did not remember the 2 nd defendant signing ~ a Mediation Settlement Order in his favour. PW 1 testified that h e was ignora nt of the email purported to have been from him dated 4 th June, 2014, at page 3 of the defendants' bundle of documents. He however, conceded that he sent the email at p age 22 of the defendants' bundle of docu1nents to his then lav/yer, :rvrr OMM Banda although he was still not a\vare of the 1nedia tion. PW l testified that the 1 st defendant did not illegally J8 obtain the farrn from hi1n and ·that he did not ren1.err1bcr a n1.eeting t a king place on l fth Decernber, 2002 at Auga Farm. vVhen referred to the Minutes of the extra ordinary Board meeting h eld on l 7 th December, 2002 , at Auga Farm, p·w1 testified that he did not attend that meet ing although his name appeared on those present at the meeting. That he has never chaired a meeting as the founding President of the 1 st defendant. PW l also stated that h e did not recall uttering the words at page 16 paragraph 3.1.1 of the defendants' supplen1entary bundle of documents. PW 1 also told the Court that he did not know Cardinal Tarcisio Bertone a nd that he did not have personal dealings vvith him. In relation to th e letter to Bertone at page 21 of the defendants' supplementa ry bundle of documents, PWl testified that if he would prove it, h e would. In relation to the affidavit of confirmation of signature, PW 1 told the Court that it was the first time he was coming across the said document. PW 1 testified that he did not derive any benefit from the mediation settlen1ent order. He also stat ed that h e never maintained the services of OMM Banda as his lawyer and that he did not give OMM Banda any instructions to act on his b ehalf. Further that h e has never gon e to a n y n1eeting with the def endan.ts and OIVIM Banda . J9 PVv 1 t estified that he could not rexnernber attending the urgent Board meeting on 16th June, 2016, as shoV\rn at page 25 of the defendants' supple1nentary bundle of documents. PW 1 · further stated t hat h e did not remen1ber 1. N"hether those meetings took place or not. In re-examination, PW 1 testified that he did not attend any Court proceedings and further that the 2 nd defendant did not show him the mediation order before signing it. In r elation to the question whether the 1 st defendant illegally got the farm from him, PWl testified that he did not transfer ownership of the farm to the 1 st defendant. That the email at page 3 of the defendants ' bundle of docurne nts is elated 4 th ,June, 2 014, which is a date earlier than the Mediation Consent Settlement Order at page 31 of the Plaintiff's bundle of documents which is dated 18t.h September, 2015. PW 1 testified that he challenged the affidavit of B ertone through his letter dated 21 st lJuly, 2 010. Further that the said affidavit of confirn1ation of signature vvas sworn before a notary public. PW2, Kafula Ng'andu, a peasant farmer from Mapepe, Chilanga, testified that he becan1e a Board member of the 1 st defendant in r).009. P\V') testified that at that tirne he became Board mernber J10 t b e discussions the Board \ A.ras having vvere related to land issues and an1endn1ents to the 1 st defendant's Constitution; particularly Articles 6,7, 17,26 and 28. That the said Articles were very crucial Articles to the po";ivers of the Plaintiff so much so that if amended, the Plaintiff's powers V\rould be removed as President of the 1 s t defendant. PW2 testified that the executive pov.rers of the Plaintiff went to the Sisters of the Redeemer even though the said Sisters of the Redeemer wer e created by the Pla intiff. PW2 also testified that one Joseph, a PAMO (an organisation which was sending funding to the 1 st defendant) representative based in Italy, came back from Italy with a Deed of Gift to Zambia although the said Deed was not notorised in Italy. That Joseph then proceeded to a mend the 1 s t defendant's Constitution Vi. Then the Plain tiff was cxcomrn unicated by the Ro1nan Catholic Church in Rome. PW2 testified that the 1s t defendant is a non-denominational organisation and therefore did not belong to the Catholic Church. However, that Joseph was trying to have the Plaintiff ren1.oved from his position in the 1 st defendant organisation on the basis of the excommunication. He also testified that when the Constitution vvas amended, the Plaintiff vvas expelled from the 1 st defendant and Jll th a t t hi s v,ra s confir1ned by the extra ordinary Genera l Nf eeting of 10th July, 2010. That the Plaintiff s u ed the 1st defendant in 2011 . PW2 told the Court that there are t\i\10 portions of land at the 1 st defendant. That one piece of land accon1modates a school, hospita i and supermark et while the other piece of land accon1modates Auga Farm which is owned by the Plaintiff. PvV2 stated that the Deed of Gift at page 25 of the Plaintiff's bundle of documents is the one that was brought from Italy. He testified that the Plaintiff could not have signed the said Deed because at t he time h e had been in South Korea for three months. Therefore, that the s igna ture on the Deed of Gift was forged. Under cross-c-:xamination, PW2 testified that the Deed of Gift at page 25 of the Plaintiff's bund]e of documents came from Italy ~ although h e did not have proof before Court that it did. When put to him that the said docun1en t was prepared by M ulungushi Chambers, PW2 maintained that. the docu1nent was not signed in Italy and that it came with Joseph. PW2 also conceded that he was not a h a ndwriting expert to knovv vvhether the Plaintiffs s ignature \Vas forged and further tha t he J12 \Nas not given a report by a handvn~iting exp ert in relation to the said Deed of Gift. PW2 also told the Court that he had evidence that the Plaintiff was in Itaiy when the document was signed but that the said docurnent was not before Court. Further, PW2 conceded that he did not s ee Joseph hand the document to the Plaintiff but that the Board Chairman informed them to that effect and that he has the Minutes to that effect although the same are not before Court. On the other hand, DW 1, Derrick Delux Chilumbu, told the Court that t h e Plaintiff is his uncle. DW 1 testified that he and the Plaintiff were corresponding through email from as far back as 2012-2013. It was DW 1 's evidence t h at h e together with the Plaintiff's lawyers a t the time, informed the Plaintiff, through email, that there \A[ere prospects of m edia tion to the case. DWl testified that after the Plaintiff sent the email at p age 22 of the defendant's bundle of documents, the Plaintiff's lawyers and the 1 st defendant's lawyers drew up a Consent which DWl signed on behalf of the Plaintiff. That the Plaintiff's lawyer also signed the Mediation Settlement Ord er on b ehalf of the Plaintiff while Chiwera Phiri and Counsel Kennedy Kaunda signed on behalf of the defendants. DW l testified J1 3 t:bat on ce the Mediation. Settlement Ord er "vas s igned, it ~vva s cornrrrunicated to the Plaintiff. f) \,V l went further to testify that after execution of the lVfediation Settlement Order, there were a series of events; narnely that the Plaintiff came b ack t o Zambia to take up his position as th e founder President. DW 1 told the Court that the founder President held tvvo m eetings with the 1 s t defendant as shown by the Minutes dated 23 rd July, 2016 . That the Plaintiff was first on the attendance list and that DW 1 v:.ras in attendance as nephew to the founder President. DVJ 1 testified that th e Woodlands house is still in th e possession of th e Plaintiff and th a t it is particularly being h eld b y his wife Maria a lthough th e title deeds a re still in the nan1e of the 1 st d efendant. Under cross-examina tion, DW 1 testified that h e \.vas asked to represent the Pla intiff although h e did not attend any mediation proceedings but just signed the Mediation Settlement Order. He testified that he was not aware that the party or representative should be in attendance during n1ediation proceedings. It was fJW l 's further evidence tha t it was the obligation of the Plaintiff's hnvyer to attend the mediation p roceed in gs . That he signed the J14 lvlediation Settle1nent Order because its contents v.rere 1n tJ.1.e in tcrest of the Plaintiff. DW 1 told the Court that there was no Pov..,cr of Attorney exn.powering hin1 to sign th e lVJ.ediation Settlement Order on behalf of the Plaintiff. VJhen referred to the Deed of Gift, D\N 1 testified that he could not state vvhether the Plaintiff was in Italy but that he recalled that the Plaintiff went to Korea. DWl testified that according to the letter addressed to his Grace Bartone, the Plain tiff was in I(orea in 2010 and not in Italy . DW 1 testified that the Deed of Gift at page 29 of the Plain tiff's bundle of documents does not have a notary public to signify t h at it v.ras signed outside jurisdiction. DW 1 told the Court that the gratuitous loan for use at page 55 particularly in paragraph .1 sho\vs that the Agreement was for an initial period of 3 years. DWl testified that the Deed of Gift dated 27 th January, 2010, shows that the 1 st defendant was the tenant. That he v..ras not aware whether the agreement was terminated or not. In relation to the 1 st and 2 nd defendant's defence that the Plaintiff was not in a state of mind to commence the action, DVv 1 testified that that was just an opinion and that he did not tell his lawyers to say that in his defence. J15 Memb er of D aughter s of the Redeemer and h a s been one frorn 2002 to 2009, and then from 2014, to the tim e of trial. She testified that in 2002, she attended the Board Meeting in which the Plaintiff indicated his desire to give his land to the 1 s t defendant as shown at page 4 of the defendants' supplementary bundle of documents. That the Plaintiff was in attenda.11.ce as well as other Board Members. DW2 further stated that the purpose of the extra ordinru·y m eeting d ated 2 11d December, 2003, was to finalise the tra n s fer of the title d eed fr om the Plaintiff to the 1 st defendant. It ,Nas D\,V2;s eviden ce tha t t h e deed at page 29 of the Plaintiffs bun dle of d ocurnents was signed by Arch Bishop Bertone, the Pla intiff and Mr Majula. DW2 testified that she met Arch Bishop B er t one wh en he cam e to Za mbia . She also stated that the affidavit of confin n a tion of s ign a ture of the Plaintiff shows that the Plaintiff signed the docun1en ts . DW2 also told the Court tha t the 2 nd defendant was at the core of the m edia tion and that h e vvas th ere at the m ediation and signed the 1nediation docum ents . Under c ross-examination , DW2 t estified that she r err1embered the n1ed iation process. She also s ta ted that by 17th Dece111ber, 2 0 02, .116 t}:-ic Plaintiff had not yet handed over the title d eed . D\V2 remai.ned s ilent vvhen asked vvhere a t page 5 paragraph 3 of the supple1nentary bundle of documents the plans from the 1 st defendant were mentioned. That as at 2 nd Decen1ber, 2003, the land was in the hands of the 1 s t defendant. DW2 t estified that the Plaintiff h ad certain apprehensions of issuing title deeds to two groups, the daughters of the redeemer and the brothers of St. John Baptist. That the title was given to the 1 st defendant and that to hear that there were to be two title deeds between two groups caused apprehension in him which confirms that he gave the gift to the 1 st d efend ant. l)W2 told the Coui·t t h at she was not there when the Deed of Gift was signed and that it could have been in Zambia or Italy. That in 2002, 2003, th e Plain tiff \Vas in Rome and that she \Vas not sure where he was a t the time of the signing of the Deed of Gift. DW2 also stated tha t the Deed of Gift at page 10 of the Plaintiff's bundle of documents is not dated and the sta1np thereon is cancelled. Further that between the two deeds, the 2 01 0 one was registered at Ministry of Lands. It \.vas DVv2 :s evidence that the Affidavit of Confirmation of s ignature dated 7 th April, 2011, ,.:vas done long after the Plaintiff J1 7 She testified that it v.ras not trnc that the Catholic Church \Vanted to grab the p rop erty from the Plaintiff and leave him destitute . D\1/2 stated that she Wc:lS avvare that t h e Plaintiff challenged the a ffidavit of confirmation of signatur e. In re-exarnination, DW2 testified that the 2 nd defend ant is the key person in the whole process of m edia tion as he received a lot of correspondence from the Plaintiff instructing him (2 nd defendant} to settle the matter outside Court. I have carefully consid ered the plea dings, the evidence on record and the \vritten submissions made by State Counsel, for the Plaintiff. The Plaintiff herein has alleged fraud and it is trite that the standard of proving a n a llegation of fra ud is higher t han the c ivil law standard of proof. In the case of Charles Kajimanga v f' Marmetus Chilemya[2016] ZMSC 1891, the Supreme Court held that: 66An ~illlegation of f raud must not only be clearly and distinctly alleged but it must also be cJ'.early c01.nd distinctly proved by evidenceo The standard of proving an aJlega:tion oJ~ fraud is higher than the civil law standard of proof:,, Therefore, the Plaintiff h erein h as a duty to prove his cas e on a standard higher than a mere balance of probability . I \Nill first - - J18 cor:,.sider the third. and fourth clair:ns ra..ised, namely; z1n order that tbc deeds of gift relating to the re1n.aining extent of Subdivision B of Farm No. 456a) Lusaka and Subdivision C of Farn1 No. 456a, Lusaka are null and void because the said deeds were fraudulently executed and registered; and an order of can.cellation of certificates of title relating to Subdivision B of Farm No. 456a and. Subdivision C of Farm No. 456a, Lusaka on the grounds that they were registered on deed of gift procured by fraud. In relation to the claims above, the Plaintiff herein testified that he did not s ign the deeds in issue. The Plaintiff referred the court to the letter to his eminence Cardinal Tarcisio Bertone dated 21 st July, 20 l 0, at page 21 of the defendants' supplen1enta ry bundle of documents and testified that he wrote the said letter. The said letter reads as follows: "Your eminence, Asking for your blessing. I am w:ritirn.g tro b:ring befol'e yourr eminence a serious matter. I just :received copies of two tDeeds of Gift' in which it is stated that I am giving away around 700 hectares of my land to the Zambian lf-Xe1pers Society. Your t~,o eminence documents. 1I have neve:e: signed these docun-ie:nts B.nrl K do not remember having ever asked your eminence to be a witness. the witness of these is mentioned as The fi.:rst document is dated 5 th of Octobe:r 2003 and the scc~Jind docu:;neini.t is clated 2~h Ja:r.11ua1·y 2010. ! beHf!Ve that in ~i003:, you:f e11.1::d.nence was J.l:tchbishop of Geno~-:., at \i!Ihich ti:rae it wouit.i. have been d iffictdt :forr me to see you. sh-_,_i~e Ji: 1Nas h'.l . J19 o o o .,.. \) n~ ~ ,,, ,~ 1il O .!i.2U"~'n. A. Y ote.!JleV<e ~~d8!l!.. it !,c;at!)e aSS:!lf:;';l'.: 1'.'Jffie ill(i clia:rn1fy11E.1g tKHS :[§§U<e • .!!. yov1r. eri.nine11ce ueve~~ sugrmed the 6D<Z(eds <D)f <Gift., 1h:1sc:rM1orvJllious people have taken acdl~.ramitage of :m.y ab§eltce in Z£H·.n.bia to seek. to appitop:idate my lair!d.. X need my Tiaii1irl as J[ seePt~ ·c-o develcp Mc W!lCu the goal of assisting t1me i)HOi(Q)ir ari11rdl :neeuy 1:n 1~aT:.1i:'JilUl13l. ,t.... . ?? w 1.~, . •~.'il- ,t.. i ~.~.... .,.1] 'f· . ~ ,,.., o c •.1 This letter was not objected to by the defendants . In the case of Anderson Kambela Mazoka & Oifchers Mwanawa.sa & Others (2005) ZR 1as2 , the Supre1ne Cou rt stated that: ''Thus, in a case ivhere a defence and or in 0-a.~0 view, any matter not pleo..ded is let in evidence and not objected to by the other side, the Court is not and should :not feel precluded from considering In our considered opinion, the Res_pondent having not objected to the evidence i,nmediately it was adduced, t his Court is not precluded from consideri.ng that evidence." ito I therefore find that the said letter was sent to Cardinal Bertone showing that the Plaintiff herein as far back as 20 10, ,~ras denying having signed the said d eeds . The Plaintiff's testimony is consistent with his defence that at the purported tirne of execution of the said deed of gift on 27 th January, 2010, he vvas in Korea as evidenced by th e letter to the Commissioner of Lands dated 5t11 ,June, 2017, at page 34 of the Plaintiff's bundle of docu1nents. Fu;·thermor e , during cross--exa1nination DW 1, ,.vhen ref errecl to the deed of gift dated 27th January, 2010, testified t hat he could not state exactly whether or not the Plaintiff was in Italy but that he could r ecall that the Plaintiff went to K.orea. This corroborates the evidence that during the tirn e the deed of gift v\ras being executed, the Plaintiff was in Korea as sho-wn above. DW 1 also conceded that since according to t he letter to Cardinal Bertone, the Plaintiff was in Korea at the time of execution, the deed of gift was supposed to be notarized to signify that it \Vas signed outside jurisdiction but that the one on record was not notarized. DW2 on the other hand, told the Court that she was not sure where the Plaintiff vvas at the time of signing of the 2 010, deed of gift. This entails that the Pla intiff has provided evidence that he was not in Italy at the time of execution of the d eed of gift while the defendants' \Vitnesses are not certain where the Plaintiff was at that time. The defendants have thus not provided proof to disregard the Plaintiff's assertions. The d efendants' evidence on this issue is rnainly premised on the affid avit of confirmation of signature at page 22 of the defendants ' supple1nentary bundle of docun1ents as well as the 1\/Iinutes of the n1eetings t hat the Pla intiff is alleged to have attended. A perusal of the affidavit of confir1nation of signature, was dated 7th A.pril, 2 011 . 'This '-M8.[:; abou.t rune n1onths a fter t h e Plaintiff sent a letter to Cardinal Bertone stating that he d id not sign the doc1...nn ents . A perusal of the affidavit of confirrnation of signatu r e ; r eads inter alia as follows: ' 6li Ca:rcdinal T:a].·cisio )Be1rto n e , rt'esii.dermt in th.e v·atican City State, states as follows: · d . t all. · h ~ I ·· .res1 e !n " nL .11.1.v. L"\ l. t hat m y fu ll nam(es ate 'Jt A. RC:O:SKO JEERTOrJE; 3 . that I a m a Catdinal of t h e ROMAN CAT:if-IOJ ... J C CHURC:!H[ and I am the SECRETARY OF STATE of His I-:H>aHness Pope Benedict t he 16th · "' l l T v,r~ r. N lf""•ir,;r·~- ~PJ/'\ n.1~E· 1vl J1 .t o 11..~ '- ; _ , 4 . t hat I am a citizen of t he VA'rKC. AN CITY S1~. ATE 5. that in February 2003 I c o u nte!("signed as ~1itness two doc1.1.:•:n.ents being Deeds o f Gifts to Za n1hian Helpers Society by U.1e then A1·chbis h op EMMANUEL lVIILINGO on the R -e~(~1.aini11g E:11:tent of S ubdivision B of Fa:rn-i No. 456a Chipongw-e, Lusaka and the Remaining Extent of Subdivision C o f lq-arm No. 4 56a, Lusaka in Za:mbia 1rvhich the then A:rchbishop ElV!MANUEL lVIILINGrO s ig ned; 6. tha t the said E NllVIANYiJE L MJfLINGO signed the documents in :rny presence and in the p:rese:nce of Cardin al •GIOVANNI CHELJt and F a ther E NR ICO PEPE at the Pontifical Council fo:r WHg,:ants and Itinerants at San Callisto Palace in Ror.ne , Italy; 7 . that the content s of this m y affidavit of c onfb:mation o f signature are true in every way." A scrutiny of the letter reproduced above shovvs that Cardinal Bertone deposed that in 2 003, he countersigned, as a ,;vitness, two d eed s of gifts in r elation to t he properties in issue . Ho,;vever , the evid ence shows tha t only one of the two d eeds ,vas execute d in 2003~ while the ot her ,Nas executed on 27th J anuary) 2 010 but - ' J22 both \;Vere alleged to have b een signed by Cardinal Berton e. As s h own , th e affid avit of confirmation of signature , 1.vas d r afted in 2 011 , but C a rdin al Bertone in tb.e said affidavit only referred to deed s of gifts signed in 2003, and there was no 1nent ion of the deed of gift signed in 201 0, a year before he signed the s aid affidavit. Since the d efendants have exhibited only t "'vVO d eed s of gifts dated 2003, and 201 0, the question that comes to mind is therefore which other d eed did Cardinal Bertone sign in 2003 ~ as stated in the affidavit of confirma tion of signature? The record does not s how a ny other deed a p a rt from one said to have been executed in 2 003, a n d the other in 2010. It is therefore difficult t o appreciate the evidence given in th e affidavit of confirmation of signature, as it contrad icts the eviden ce on record. In addition, both d eeds on record relate to only the rema1n1ng extent of Subdivis ion C of Farm No.456a Lusaka. This can be seen on the covers at page 10 and 2 5 of the Plain tiff's bundle of documents r esp ectively. In fa ct, the Schedules at pages 13 and 28 of the s ame bundles are drafted in exactly the s an1e terms. They a re draft ed in part , a s follows: J23 ~- .,Q..('. >,.,_,._, ~ t...~• ,,.'llf!.<:- ~~ ~' ,;-;r,1r?7l~·11,ffi whicft. _,,_r1,r.ece o.11[.' is rn.ore . Jrie_pi(hU.(: . !-., [:»,DZrticu h?::r lu de 'lun..e<r:Q,'ted CJ'lfii.d i:'Jt?.. JiJia_gramn 1VYJ.:ii1ril. H:»er 60 <qf J'. 956 JE}!JCEPT ra:rn1 LR,.f;SERY?:. E~.lY o:. U ·n/d:ner'r01Js oi as <r:J.nd J.c»·irecitvUf!.; str.r.wies 'iJJIJf'P.0.1.tsri·ever u_pot:-i:., or unde·rt the s Ol l \i.4 cdl.escu"-l}Jte,;:l 'f. C£.ru1 (l,(01, n. u C c ,,JI 11 /3 G5' - ~ , This schedule is describing the sam.e land as both deeds are drafted in the exact same way even though the dates are 7 years apart. I thus find that the deeds of gift on record, alleging to transfer the two properties to the 1 st defendant, only related to the Remaining Extent of Subdivision C of Farm No. 456a and did not include the Remaining Extent of Subdivision B of Farm No. 456a as a lleged in paragraph 1 of the defendants' pleadings as well as the affidavit of confinnation of signature. In th e case of Hanif Mohammed Bhura (Suing pu:rsuant to a Power of Attorney) v. Yusuf Ibrahim Issa Ishrr1ail .l.\ppeal No. 146/ 2013 , the Supren1e Court referred to the case of Attorney General vs. IV1arcus Kampumba Achiume ( 1983) ZR. 1 4 at page 14 and stated that: ''Based on 11.vhat has been d'iscussed above l,fZncf that the Deed of Gift v.vas not ex.ecv;.:ied by the de.f~-::ruiant CQ!. S the prurpcn"'ted donor. The xolaintiff has thus fr.·xi!ed to p'ff'·ove his case on the a:u:thenticity or v01.liditJl oJ:- the Deed of f3i.__ft relied upon. On th<f! other h01.n.d, the d::::J'7.~ndant has J:YV-r:_»ved -that the puiJY@ried .signa:cure on th.·.:: }Jeed of rn . .r-rc dii.d not belong to him in line with the e.~p•-:;/ ~; .-evi.deutc'8 of PW3"~ J24 P.~t-·rv·.h.:rJ>:d.ty5 ) SCZ Judgrn.e;nt No . 20 of 2003 it was h eld that: 1. 6'°'"uif)l'!e:t·e frea t.1dl. i.s an fa:\sue irm the iP)F.oicee a)]Jngft, then 9\ pa1ety vJis1hdi1n1.g t0> rrely <D>n it n11ust <elilS~Fe 'd(.t1.at ilt is clea1dy :B111.<dl dJ.st:ha.ciJ.y a Rileged .. , .. ,. "c In casu the plain tiff h as specifica lly plea d ed fraud in his pleadings as evidenced at paragraph 8 of the sta t en1en t of clain1. In the Hanif Mohamme d Bhura case, the Supreme Court found that the Learne d J udge in the court belovv was on firm ground to order cancellation of the title deed a nd order rectification of the register in relation to the property in view of among other things that the court looked at the docun1ents presented to it by the expert and came to it's own conclus ion. That it was not in dispute tha t the Appellant did not witness the execution of the d eed of gift in issue) n either was the witness who is a lleged to have vvitnessed the execution of the deed of gift, called as a witness and the doner did not testizy. In casu, however, the purported d eed of gifts wer e executed by son1eone \Arho h ad no Po\Arer of Attorney from the p laintiff, h ence the said deeds of gifts having no legal effe ct as they ,Nere fra1.,.1dulently executed and as testified by P\i\12 they \ii/ere brought by one Joseph fron1 Italv arid th a t the plaintiff vvas jn Korea at that J - tirne such that he could not have signed them. In r elation to the other defence that the IVIinutes on record shovv that the Plaintiff herein desired to give his land to the l st defendant, the defendants mainly relied on pages 4, 10 and 16, of the defendants' supplementary bundle of documents. I note that the Plaintiff denied h a ving been present at the said meeting even though the minutes show otherwise. PW2 infact told the court that the r eason w h y the plaintiff was removed from the 1 st defendant's Board is because h e was excommunicated fron1 the Catholic Church and that PW2 believed that the plaintiff's signature on the d eeds of g ift \vas forged even though he did not produce any evidence to that effect after being challenged that he was not a han.dwriting expert. A perusal of the Minutes of the extra ordinary board n1eeting dated 17th December, 2002, at AUG/\ fann, shows that the Plaintiff was present. According to paragraph 3 of the said Minutes, the Pla in tiff, in his address stated that h e was ready to hand over the title deeds to the land in Chipongw-e to the 1 s t defendant. The said Minutes in the same paragraph at page 5 of the said b undle s ho\.\, that the Plaintiff stated that h e had a greed to transfer title deeds J2 6 of th.i:: farms to the l :;t defendant and that the 1 s t d f'Cendant should let him k noV\r in advance the plans so that they could b e analysed in line vvith the 1 st defendant's philosophy of helping the poor. The Plaintiff vvas also said to have stated that care n1 1..;1st b e taken in distributing the said pieces of land. At page 10 of the said Minutes; at paragraph 7.4 , it was stated that it was r eso1ved that the transfer of the title deeds would not be effected until the Ndilila case had b een settled. The defendants a lso made reference to the Minutes of the extra ordinary meeting h e ld on 2 nd December, 2003, particularly in paragraph J. l. 1. at page 16 of the defendants' s upplementary bundle of docu1ncnts where it was stated as follows : "The President st~.ted that he had certain 2pprehensions over the issuing of title deeds to the Sisters a nd Brothers. F irstly there was a question of moral entity, it was feared that Z11S as a moral entity directed by t he Boa:rd may be overpowered by DOR and BJB who a re personal appropriation. ,. - The second question was how far would th.e })OR and BJB 1naintain the expectations of ZHS. \\(hat would they contribute to ZHS? 'Vllhat wor~ld ZHS gaJ.n from their p:tescence? There -vvas a possibiHty that they· ·would aspire and vJ·ork towards their own self-reliance a::: the e1q,ense of ZHS.'' In paragraph 3. 1.2 of the said lVIinutes it was stated as follows: lt{!:spons0 to the A:echbishop,s sent:h11ents~ ·;:he folik)l>trftng c,:h.1 p1i.1ints we:i'e :raised: \i .. t~•!:-d .. A«:»n.t~ :]. Cted that the JD:K)R. 8!Ji:11i.{ the 18:r.otheK"g "t?ve:re also ·h,} J(~: ~r.131,s ,.,I[''\ 'CJ .. ,, 1""' "---" 1'""] • • .,, <.- .; _ ~ li1SJ.«l 81. Jl}.].0 :{ a.t (0) I\. JIJ.1gn\ e~.!i.'-:.#ll L . .). overr ·~J,erotA and as ~u©Jh. it was~ a h um.cA1hle appeal fx·o):m the t1Mo r~«)ngi:egavJ.tQlns to h£ cc<0m1.~idle1l'ecdl foi1t 'idr.lte deeds. . ·J ~ .. 'i£2J.1l@ Ale .ra1rc»:tts.h<O>]P)§ i1,., i'il Jill VJ r (t,!( •t )I .,, • • . , lBll."(Q)~J1e:C"s ftnd Sister§ ~~.1.3. '~lit ~n;as fi.r11aHy ~~esCQllivetdl ilh1c-11t 1i:h<e 1V'J(1]11.,11R«-1l. be 8l. H{Q)cat~d Ra:rn1.d 2urn<d. ·U.tl1e deeds ·tLllpHon pu.ttln.g in •1Tt11titing a pledge of th.ehr C(JJ)li1Jlllllitroo.e:ir]t to VJ<rlllc'k v,ith :zHS to the PYresitlent copdi.ed t~ the ZH§ JEoar;dL ?? It is clear fron1 the said Minutes that the Plaintiff intend ed and agreed to tran.sfer title to the 1 s t defendant. Hov.rever , I am of the considered view that th ere were condition precedents which n eed ed to be satisfied first before this could happen. This can b e inferred fron1 the paragraphs reproduced above . I n ote that some of the conditions therein were in relation to t he Brothers and Daughters of th f:' Redce1ner (DOR) however this goes to show that before the Plaintiff could a llocate the land , he needed to be satisfied that it was all to the b e n efit of the vision he h ad for the 1 st d e fend ant. DW2 con ced ed under cross examina tion that the plaintiff had certain appreh ensions in issuing title d eeds to the two groups, namely the DOR and Brothers of St John the Baptist. Furthermore, in as much as the Pla intiff agreed or intended to transfer land to the 1 s t defendant, the 1 st clef endant h as not produced any proof, apart from th e purpor ted deeds of gift, to show that the Plair1tiff actually went through vvith the t ransfer . I find that according to the Piaintiff's evidence in the le-U:er to Cardinal . J28 Br~rtCJne and DVV 1 's evidence th at> the Plaintiff v.ras in South Kore8_ at the tim_e th e 2010> deed of gift ,vas executed, mean ing that the Plain tiff c ou ld not h ave b een in Ro1ne a s suggested by the a ffidavit of confirmation of s ignature b y Ber ton e. Furthermore> t h ere is no deed of gift in r elation to the Remainin g Ext ent of Subdivision B of Farin No. 4 56a as shown above contra ry to the p leadin gs as well as the a ffid a vit of confirm a tion of signature. In light of th e reasons given above, I am of the consider e d viev.r that the Plaintiff herein has p r oved on a higher s t andard of prob ability that the purported deed s of gift on re cord \Ver e fraudulently executed . Section 14( 1 )(c) of the Lands and Deeds R egistry Act Ch apter 185 of the Laws of Za mbia provides as follows : "No action fo:t possession, or othe:r action for the r ecove:ry of a.ny land, shall lie or be sustaine d a gainst the R egistered Proprietor holding a Certifica t e of T i t le for t he estate o:r interest in :respect to which he is registe r e d , exce pt in any of the following cases~ that is to say: the case of a person deprived of any lan:d hy fraud, a s (c) against the person :registered as ptop!'ietor of s u c h land through fraud, or against a person deriving othe:rv;rise than a s a transferee bona fide for value from or th:roug-h. a p e rso n s o registe:r~d through fraud;" The Supre1ne Court in the cas e of S:rnith Sa\r.rHa v Atto:n:aey r::: General and Another Appeal No.1 of 2019 .__,, referred with approval to the case of Anti-Corruptio11 Com1nk:rd. G:tt v Ba:rnnet J29 held that v;;hile under Section 33 of the Lands an.cl T)eeds Registry Act, a certificate of title is conclusive eviden ce of ovi1.nership of land by a holder of a certificate of title, Under Section 2·4 of the Act, a certificate of title can be challenged and ca.11cellecl for fraud or for reasons of impropriety in its acquisition. In the same case of Smith Sawila v Attol'ney G enerali and Another supra, the Supreme Court also rn ade reference to the case of Co~pus Legal P1cactitioners v Mwanand.ani Holdings Limited SCZ Judgment No. SO of 2014 8 , and stated that in that case, it held that a person alleging fraud or any oth\";r impropriety, with regard to the issuance of a certificate of title, must challenge the same through a court action and prove the a llegations of fraud or other impropriety, as the case may b e, to obtain a Co11rt order for the cancellation of the a1Iected certificate cf title by the Registrar of Lands and Deeds. In the case of S:ciith SavtrHa v Atto1·ney General and Another supra, the Supre1ne Court also stated as follovvs: '6T'~ H • ~c ~- ,;llf; o:r.1.~y 1.itt2s~!it:rec·a::ion iiJlB 11.n.e par'I!: cl Lk1e 1:::.s:tned Judge~ :':he outcoxl!'l~ 11vhlch sadly for the appellant does li?.ot aff.2 . :-.· of the appeal, is that the judge, insteaC::. f· :-:· •olde:ring t hic o,. 'l \.. ' l • o t!" • J30 f'\s 11Je ~aid iru1 the C@rt111,lls :i.egali P:ractnttiioa:~1.r:=~ a case, it 1liras fo:t the JR.egnst1eart of 1,;ru1.cds arll.<dl DeecrJs t<a ~:~·t·:J:!t the a e t1ut~J. <ea:{1t<CG~Ha1tfi.on of t!hi.e celi."'fcnfi.,~ate of title, h c ::::rn"dJ.ngRy, 11v·e the ca1ncelill~tiiorat (Q)f the ce:rt:iL -: ?.tee of title 0 ! (~·r~Yercse , if,.,.. "' .. ,., -. - ·.- L~ A-,';,,,_..,., of th~ ~ 9 W<e 0021..fl~{e a. Jn <Ort~en• .1:._1l$1(02l. M il.,,_c::, ce:rtlir11cate of tii'ttie for ireas(l)ns O». . Lll .. .;:.> acc_rviis.ition. '' c: .!!.(j)jf ~1'.].(;; <Cc-~HL :;;; : . .1_,.-. J;.l. Ji11,. U1.di il. Ti'l!II'<,,:~-; p 1·1<f. H.y -~"'ll ~iA ,.11 ·~ ,{I,~ A~ ; \. . As guided by the Supren1e Court in the case cited above, I accordingly order the cancellation of the certificates of title that \1/ere entered in relation to the properties in issu e in the name of the 1 st defendant, on account of fraud in their acqu isition. I will novv move on to the first claim raised. The first claim made by the Plaintiff herein i s for an Order setting asj c1e. the Mediation Consent Settle ment Order on ground that the said settlement was made without the consent of the Plaintiff and that the Plaintiff did not execute it. The question herein is therefore ,.vhether or not the Plaintiff's Advocate then, h a d authority or consent of the Plaintiff to enter into the Mediation Consent Settlement Order that the Plain tiff is urging the Court to set aside. The record shows a Mediation Consent Settlement Order relating to Cause 2014 /HP/ 1384 between the Plaintiff and the Trustees of the 1 st defendant. The Supreme Court in the case of Charles J31 had occasion to explain court annexed n1.ecliation. It stated as follows: (;(it i.s by defi.'01,.fi;icon, ~1 lfJJ11Y,cess by whiclt t::,;: trial tC(JJ)Ur1: refers the parties t<D a ne·,u,trraJ third r..u:z ;;·-t,y c01Jled, a Trt/8,~diato-r, to help them res@lve their di£~_i_tJ;~:_{teo The said neutral thiv 0d pa:rty _p loiy s a . JVJ.cilitcr.t-i-ve ·r .-:, r..e by merely providing a fcr::;r-·1,.uria. for t h e ptn!rlies to exp . Loi·e @pt-J.ons f«Jr set tU.ng -their dJs_p-utes ,, 1the _process is p t:·.r(y driven and as such, the parties structure the agree ri'a.-s-nt that they fin a lly come up with.'' The Supre m e Court in the same case went further to state that: "On t h e other h a nd, the R.u les o n Court anneJ{c-: d :.o:n ediation in Zarabia , U:-.1dei' O.:rder 31 of t h e High Court rtules, compel a p a rty to attei!d befor e a n1ediato:r and any settle:tne nt reached is bindi~ag :1pon -the partie s and final. As such n.·3 appeal lies against such set tle m ent .... As s u c h binding :;.:tnd final order , a mediation settJ.ement o!l."der, sign ed by a m.ediator and the parties, marks the end of the proceedings. T he order cannot be subject to appeal, interpretation or. review, nor can the proceedh.1.gr; from which it arises be re-opened." Order XXXI Rule 8 of the HCR provides as follO'v.rs : ( 1) "The pa:d:ies shaH attend mediation eit:L.(:::i· :ln person 0 ~ with a legal representative." Rule 16 of the HCR goes furth er to provide that: ( l)"The purcpose of refei~r fng p:roceedJngs to :-rL: d.iation is t(D) a ssist th0 parties x-each an ag:reen1.ent h::i. _i.{r::::1,d. faith on a fait a n d efficient resolution or partial :reso l'r.< tion of theirr d ispute.'9 J32 Pursuant to the above cited provisions, I am of tb.e considered vievv that a 1nediation can be attended by the party or by the legal representative or both. Therefore, the Plaintiff::: /\dvocate can represent the Plaintiff and sign to bind the Plaintiff. The argument in casu is that the mediation settlement was rnade 'Nithout the consent of the Plaintiff and further that the Plaintiff did not sign the said Agreement. The said mediation settlement order at pages 30 to 3 1 of the plaintiffs bundle of documents ·was signed by the 2,,c1 defendant for c.u1d on b ehalf of the plaintiff '-;vhen in fact there vvas no Pov1cr of A t.torney to enable the 2 nd defend ant act on behalf of the plaintiff. In fact, DW2 conceded under cross exan1ination that the plaintiff did not sign the mediation settlernent order as h e was not around or present at the signing ceremony. A perusal of the email at page 22 of the defendants' bundle of documents states as follows: Than.le you for i:n. .. jormation. I was 50 days in lt01,ly,, CarAe hack.just :y ·-:.~::_·;.:;rday night. J33 ?I'h.ou,gh .iI dor;t 51t 'i!,-J.rr"i!,rdc-:"f/'S·([,owr_.d ~ft... Pholt is ?Z1:.c~d{,·.-:/.·=1. n 9 . Please lei; l0!;r Delax <Chilh1«7/11,ltMJJJ. r·e/fN?"esent rrrrie (!)zf; /!JOu..r- --:··:.-'..-ivice. ,, The Plsjntiff admitted to sending the said en1ail. J-lo\ivever, in cross- examination, the Pla intiff testified that he vvas s tilJ not aware of the 1nediation and further during cross exain.inatior; s tated that he never maintained the services of Dr Banda as his l avV)'er an.d that Dr Banda was never given a ny instructions to act on t he Plaintiff's behalf. In the case of Philip IVfutantika and AnothE;r v Kenneth Chipungu SCZ Appeal No.94 of 2012 10 , the Supreme Court opined a s follov,_;s : "We, r:~ust re-iter.ate ou1· position that a party who is :represented by a lawye,:• is not excused from attending Court. In the case of Ram 1-\uerbach vs Alex K.afwata, ~i;,~ o bserved that litigants have a duty to attend Court and that Ht.1.gants default in attending Court at their o wn peril .... ( It is our further considered view that the AppeHants should have been more concerned as their ibre tnost d i~ty and interest o ught to have been the p:rosecution of their ~t'.l;.r r~eal. ... their Counsel and / or his Although it has also been argued and spitite di y so, if we may say, that the Appellants shoul d not be p ·t>:.:.}P diced by the .\ ·.:.gHgence or defauJt of ·1: i~en t hat the incompetence, ou!" fi:rm position has c1.hxray::' relatio:rAship het-vveen a party a11d h is lawy•c:;: L: <> f no concercn of the Courrt as that is a p!t'hrat~ matte:r v~rld-::::·i_·! :r..as :nothing to do 't-Vith the Courd:. Hence, it ca:!f11n<0t be usE:(i -_·:.~ a gro~,.u.1.d for orderhRg !testoi~ati([J)n of an Appeal that WD. ~ (: ::.;;_.-;_;_issed. due to the absence of the Appellants and th.eh: leg2.:: . ·. ,:·,_·;.:i:'"l.sel. •• 0 J34 ,;t ~ · • ' ..,.j • ••• · · , ·:i-· ·1 ·a. .. ' . .! .. t.y -~ . . .l1.11anofa>o T /-~ xJ.l11dd2dt.t M(Q)t(Q)Jtt- !( ~•'"': ·· y.~ - s a .ti.us ld ,. ':1 ~ .... 7 ~... .-,, ..... n, .. • ;.e,\.'t:i \JX. J~ t(Q)ok tki!.e ~o,s.ilt10KB. tll]at Jl£ a i sul ·r.!:::- .~ ~p1-5:eJ. J8t.1tH. 'liVO~! S"Klffcr army J~lli.,~jv)1«JJ.ic e by tJh.e starm.d t lhlat vJe i.:(HJ k o•f disJt.tiitssing the fa. JPf1><eal~ then he 1.rm1ai.y hav e 7f0Cq))VJ.rse ic· h.is k-:::g:aJ. CeJ)·rnnsel wh(!:l' q~J.d :f!11ot h o3lrrn.o1Re hJs a ~:»p<eaJl. )l]li'<ClJll)<-eli~l :v .. .. .it is u v.- to tJhi.err:o. to seek tet!«:»urrse ft·©mm theii.rf Ttegal Coui!l.s et '.'~ .,-· ·· • - · :....;Icu.n;·.so.i::-o y,::;. - ~ ,,_ 0 C -:; i1 & • ? ... .., O - · I ' ' Pur suant to the above ca se, it is a carclina 1 p r inciple of our legal practice that a lawyer is the alter ego of th eir client s. Thus, the relationship between a p ar ty and their la\:vyer is private and of no concer n to the Court. However, in the case of Joe's Rarthwo:rks a nd Mining Limite d v Flame Promotions an.d Promoters and Anothe Jt" 201 '7 / I-IP/ 0262 11 , my learned sister; Justice N ev1a cited th e case of Lusaka \Vest Dev elopment Co rr1 pany Limited and Others v Turnkey Properties Lirnited 12 a s follows : ( "Although, quite clearly, the a u t h ority of counsel conduct i ng litig ation cannot be reg arded as li1nitless vuhen it c omes to negotiating a c omp1·01nise or a settlement and a lthough Counsel would in the ordinary course, t he client, we are s atisfied that in t h is ca.se counsel did /1..ave t he authVJ"trity of t he Jl/{(Ql:n.agin.g . Dii·ec t o v· o,f the t~hr··d .l-!pr3e UoJ.nt who equ01. U.y h ad ostensible a u thorit y on 'behalf c:.f the third Appella nt to give inst ructions to Cou.nse l." take instructions .from Judge Newa then went on to s tate that: 'GW'hat can be taken htl>me f:rom t h at case, is <:h a t t}1,~ a rrth,ority of Counsel in conducting litigation o n 1:-::;half ·:;if a cHent , ca.1111.ot be regartded as Hmh':less orace they· h :.1.ve be8;1 1·etailne d~ !S i'"i::tjuE·et~ to ta .. <e 1nst1·uctions f:a-om an t h.2;_ :.: Dv\i'l as ):he ~~He11t. In this case, the evidence s h :)w·s t.~1e~rexore \\.,ou:nse d ·? l O Ii...,_ • r 'f" :;J • J35 Conr1ts0.n ini~t th,$ I0 1a-~hTttiff h.s1.d tc~ t21,kiB inst:ructrior~.s 01:1 wihat w·a~ "•tn i.. !4.9te ag):(?=0(di. ~l~llo,1.1. irm th6 C:t)Jtitsermt 0]:der 9 ar~ c.a~ITTL be ser::~11 rxo100. l •v the e ~moai. H at tl)~ge 4-5 of th(c P}lah1tif:Ps bundle of docu.me:nts, E'. - • • tl' ft'• ,- • -;\.,.] l'J(-c., -'- 11,,.,_ ,e,. • •• Jl. -~l'.e.1cE:Kc»n_,~ t(Q) state that lr»y lf<eas<D>J(D. @:ir (!)SteY.ff!l~-»~e au~_11:.oi. 11 Y~· !CF. Ji-...; 2 n d Defer:11diu.11tl:? sh())ld.d n<0t be held Hafui1e '\liJ'!l.'. Ytdd be ux1Jd:i1st. The case of l\Teali0 v <G-ccllli'd<On Lem1.:fDl.<0>:-FK ir0fe1rred to t»y the :1?lalntiff in its sub:rnn.issii«:»mi.s, sh{J)WS th,~ CG:nnrrt~§ <r.:U.sapp11·cva1l or :r•cjecti O)n ,D>f rai y u rni. a'tl)!. t ho :d.se cI acts of le at rrn e d a p rin cdi pa li b<Clfij}._ rm <d. tlhat fnatte r ~il;;cu e1i:pr::--essed Con,J1nsel. The Court h1 its displleas11J1Jce client~s agaJ'.:ri:.st instructions.?' at Counsel acth1g ·1Q)e hat g its ~a• t'- , ,_._ 'r._,, < ' Although the matter 1n casu 1s not on a ll fours with the Joe?s Earthworks case supra, I a m of the considered vie\¥ th at the em.ail at page 22 of the defendant's bundle of documents, shows that there \Vas a la\.vyer-client relationship between th e Plaintiff and his then la\ivycr, l)r Banda. I however, do not think that the email amounted to Counsel getting instructions from the Plaintiff in relation to the rnediation. It is clear that the Pla intiff stated that he did not kno'fi.r what n1ediation wa s and asked tha t the 2 nd defendant r epresents him at Dr Banda's a dvice. I am of the considered vievv that Dr Banda still needed to get instructions from the Plaintiff on what was to be agr eed upon in the said settle1nent ord er because it 'A'as going to be binding on the Plaintiff. The Plaintiff has argued that the said settlem ent order \Vas made without his consent and no evidence has been produced b y t h e defendan ts to rebut the said t~]lptBi ; the Suprerne Court had this to say: 6~.11s '(f'<Zf])ratr,-·roJs the obj<eci:-J.71;e (JJ)l' ;~v.rfciri:nro..ale ,.fo"u.,,. cc:-·u<: annexed 'flflted:i.({)J.tiono O oli: aJs@ ensuurr-JS iho.ii: the p iZzr1cies -0 ~?. CiLt:e ·;resort in t<D) str u ct:vur#.ng their s<etffJeTiTrP..e'tfil.t in accor ·d. Dzrrtce i!. U-f..th terms a:rrud conditions they can o{bide by. '' in which they play 01 m.qfo·r"' rolre 01 puYN __ ::ess Further as shown above, Order XXXI of the H CR provides t hat the purpose of ref erring parties to m ediation is to assist the parties reach an agreement in good faith on a fair and efficien t resolution of their dispute . That in order to achieve this, the parties to the n1ediation a r e mandated to participate in the mediation in good faith. Without ins tructions on hovv to proceed "i.vith the 111.ediation, I find that an agrcc n1ent that is fair could not be reached. Further, I am rn indful of the law that the Mediation Settlement Consent Order cannot be subj ect to app eal, interpretation or ( review, nor can the proceedings from which it a rises b e re--op ened. Even if I were to find that the Plaintiff h erein d id give consent or authority to his Lawyer to act as an agent on his b eha lf in t h e said settlernent, I vvould still hold the view that the a gr ee1nen t in relation to the property in issue be set aside due to fraud p erpetuated by the defendants. I therefore fin d that the p laintiff has proved fraud in the case in casu. J37 I arn () f tJ:1e consider ed view t h at the princi1_)1es a p ,:ilicable to 8. C onsent Judgrnent. are applicable t o a I\/iediation Consent Settlem.ent Order. A Consent Ord.er can only be set aside on grounds of fraud, illegality, misrepresentation. and other factors that vitiate a contract an.d pleadings in such instances are not only desirable but necessary. In the case of .8a1"<C lays .!::.:tank. v ERZ Ho ldings Ltd and Others (20 12) Z JVJSC13 the Supreme Court state d: ''It is trite that a party seeking to set asid--~ a Con.sent Judgrn.ent has to commence a fresh action. fn addition, a party seeking t o irnp-ugn a Consent Judg ttz.ent has to establish -that the Consent Jv..dgment r./vas ~:Jbtained by fraud or that that party was not a pari:y to those proceedings." In this cas e, a fresh a c tion was commenced to set aside the Mediation Consent Se ttlement Order. I a 1n therefore of the considered view that this case is peculiar in that the property subject of the Mediation Consent Settlen1ent Order ·herein, was fraudulently acquired as highlighted earlier in the j udgment. As such, it will not be in the interest of justice to a llov-.r the property fraudulently acquired from the Plaintiff, to r em a in r egis tered in the 1 st d efendant's n ames. It is on this basis that I order that the J33 I\1ccliation Consent Settlement Order of l .su·, Septern b er, 2015,. be and is hereby set aside. The second claim raised by the Plaintiff \Vas for an order tJ:1at the expulsion of the Plaintiff as trustee of the l st defendant \Vas null and void contrary to the constitution. The Plaintiff p leaded that h e ,vas unlawfully expelled from the Board of trustees of the 1 st defendant contrary to the Constitution. TJ.--1e defendants on the other hand, pleaded that the Plaintiff ceased to be a member of the 1 st defendant a long time ago having been expeiled by the Board of the l st defendant. However, during examination in chief and cross cxamination, the Plaintiff herein testified t hat he was never exp elled by th e 1 :;r defendant. PW2 hovvever, testified that the plaintiff was expelled from the Board of the l st defendant after the constitution was amended and that this v.ras after the plaintiff was excommunicated from the Catholic Church. DvV2, under cross examination maintained the position that the plaintiff was still President of the 1 s L d efendant's Board. In vie,~, of the above, I order that the expulsion of the plaintiff as trustee of the 1 st defendant is null and void, as there ~,ere contradictions in DVl2's testimony under cross examination, in that she mentioned that the plaintiff was sti]l the President of the 1 st def endanf s Board: \:vhereas the J39 d e fe rida nts p leaded in para graph 3 of their defence that the plain tiff ceased to be a men1ber of the 1 st defendant a long tin1.e ago having b een so removed or expelled by the Board of the 1 st defendant. All in all, the Plaintiff succeeds in all his · claims as stated in his statement of claim for the r easons already mentioned above. I award costs to the plaintiff to be taxed in default of agreement. Leave to appeal is granted. -4 ni Dated at Lusaka the .. ... ............ day of ············tJ········, 2022 ctiiL[il A_.u_~r;:t • ••• .. • • e>• •• • ••c;.•• •,.00-00••••••••• / ) '1 ELITA P. MWIKISA HIGH COURT JUDGE J40