Giovanni Grassetto v Panayitios and Anor (Appeal 94 of 2001) [2003] ZMSC 142 (11 June 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 94/2001 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: GIOVANNI GRASSETTO APPELLANT AND KYRIACOU PANAYITIOS MENELAOS CONSTANTINOU 2nd respondent 1ST respondent CORAM: Ngulube, CJ, Chirwa and Chibesakunda, JJs on 12th February 2002 and 11th June 2003 For the Appellant: Mr. S. S. ZULU, Zulu & Co. For the Respondent: Dr. J. Mulwila, Ituna Partners JUDGMENT Chirwa, J. S. delivered judgment of the Court: - Case referred to: 1. May Goswami V Dr. Mohammed Essa and Commissioner of Lands SCZ Judgment No. 3 of 2001 This case has a somewhat long history. It involves property known as stand number 7312 Lusaka. This property originally belonged to a partnership known as Agricon Company whose partners were Giovanni Grassetto (the appellant) and Franscesco Anduini (now deceased). Sometime in 1991 the appellant applied for possession of the plot but the High Court ruled that Agricon Company as a partnership could not own property and that the property remained state property. In 1995 the appellant applied to the Commissioner of Lands for the same property and was duly offered the same on 99-year lease and a certificate of title was issued to him. : J2 : Kyriacon Panayiotits (first respondent and now deceased) applied for cancellation of the certificate of title and the same was cancelled. This cancellation was later in 2000 reversed and the appellant was re-issued with a certificate of title. The 1st respondent then appealed to the Lands Tribunal against the Commissioner of Lands decision to issue certificate of title to the appellant. The matter dragged on in the Lands Tribunal, after sometime it was resolved in favour of the 1st respondent. The appellant appealed to the Supreme Court the appeal was, by consent, allowed and it was ordered that the matter be remitted back to the Lands Tribunal for the matter to be decided on viva voce evidence. This was in December 1998. The matter in the Lands Tribunal, once again dragged on, as the 1st respondent was not able to attend the hearing as he was said to be ill in Cyprus until he died. The appellant then applied for the matter to be struck out, as there was no one to represent the estate of the 1st respondent. The matter was struck out on 30th June 200. However, prior to the matter being struck out, on 30th May 2000 the 2nd respondent applied to the Lands Tribunal to be joined in the proceedings as second appellant to those proceedings in the Lands Tribunal commenced by the 1st respondent. The Land Tribunal decided that the 2nd respondent’s application to be joined, as a party to the proceedings should have been considered earlier than the application to struck out the proceedings for want of prosecution. The Lands Tribunal was of the view that it was unfair and unjust to deny the 2nd respondent an opportunity to present his case before it and it therefore ordered the 2nd respondent to be joined as an intervening party. The Tribunal further ordered that the matter be restored to active list as the 2nd respondent had shown sufficient interest in the matter. It is against these two orders that the appellant has appealed against. There are three grounds of appeal, namely: - (1) The learned Chairman of the Lands Tribunal misdirected himself ordering that the proceedings struck out by the Lands Tribunal on 30th June 2000 be restored on an application by the 2nd respondent who was not a party to the proceedings which had been struck out. (2) The learned Chairman of the Lands Tribunal misdirected himself by ordering that the 2nd respondent be joined as an intervening party and when he had not established that he had any claim against the appellant the registered owner of Plot No. 7312. : J3 : (3) The learned chairman of the Lands Tribunal was wrong at law by ordering that the 2nd respondent be joined as an intervening party and by failing to consider that the 2nd respondents claim, if any, was statute barred by the Provisions of the Limitation Act. These grounds of appeal were supported by detailed heads of arguments and augmented by oral submissions and the same were answered by the respondent in detailed heads of arguments and oral submissions. The gist of the grounds of appeal is that the Chairman erred in restoring an action that was struck out on an application by the 2nd respondent in proceedings in which he was not a party. The action was between the appellant and the 1st respondent and on the death of the 1st respondent the executors or administrators of his estate failed to prosecute the appeal to the Lands Tribunal. That in any event the 2nd respondent claims interest in the property through an alleged contract of sale to which the appellant was not a party and has no knowledge. Further, that the claim by the 2nd respondent against the 1st respondent, if any, was statute barred under the Limitation Act. In answer, it was argued that the learned Chairman was right in restoring the matter as the application by the 2nd respondent to be joined as a party had been filed in court and had not been determined by the Tribunal when the matter was struck out for want of prosecution. In other words, the Tribunal should have considered the pending application by the 2nd respondent before the Tribunal considered the application to strike out the action for want of prosecution. It was also submitted that at the time the matter was truck out the Tribunal had been informed by Counsel for the 2nd respondent that efforts were being made to obtain letters of administration from Cyprus for the estate of the 1st respondent and that in fact the Lands Tribunal was not fettered by legalistic formal pleadings or technicalities and is expected to do justice to the parties. On the question of the 2nd respondent not having any claim against the applicant, it was submitted that the 2nd respondent has a competing interest in the property to join in the proceedings so that all disputes affecting the property are settled once and for all to avoid duplicity or multiplicity of actions. On the claim by the 2nd respondent being statute barred, it was argued that under the Limitations Act and as the 2nd respondent has been in possession of the property for more than 12 years he has a right by adverse possession as such his claim was not statute barred. : J4 : We have considered the arguments before us and the judgment of the Lands Tribunal. In dealing with the first ground of appeal, we wish to reiterate what we said in the case of MAY GOSWAMI V DR. MOHAMMED ESSA AND COMMISSIONER OF LANDS (1) that the Lands Tribunal is not fettered by legalistic formal pleadings or technicalities and as such, when it found that there was pending an interlocutory application by the 2nd respondent to be joined in the proceedings before it struck out the matter, the Lands Tribunal was entitled to re-open and restore the matter and consider the application it had over-looked. Having restored the matter it had to consider whether to join the 2nd respondent to the proceedings. It is obvious that had it not over-looked the application filed on 30th May 2001, it could have considered it before striking out the matter on 30lh June 2001. Having restored the matter the real issue in this appeal, in our opinion, is did the 2nd respondent establish his interest or rights in the matter? The interest claimed by the 2nd respondent arises from the alleged sale agreement between him and the 1st respondent. It had nothing to do with the appellant. The fact that it affected the property in question is not sufficient to join the 2nd respondent to the proceedings. He has a claim against the 1st respondent which when proved he will be entitled to damages as against the 1st respondent. It is not disputed that the appellant is as of now a registered owner of the property in question. How the 1st respondent offered the property registered in the appellant to the 2nd respondent will be a question to be determined as between the 1st respondent and the 2nd respondent. On the facts of this case, we are of the opinion that no clear claim or right had been established by the 2nd respondent to be joined in the proceedings. His claim is against the 1st respondent, and let him fight it out without involving the appellant. We therefore allow this appeal with costs to the appellant to be taxed in default of agreement. M. M. S. W. NGULUBE CHIEF JUSTICE : J5 : D. K. CHIRWA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE