Kafwimbi v Chisakula and Ors (Appeal 36 of 1990) [1991] ZMSC 34 (10 September 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 36/90 HOLDEN AT LUSAKA (Civil Jurisdiction) GOODPOINT FRIDAY KAFWIMBI Appellant and z MOSES BWALYA CHISAKULA 1st Respondent PAUL KASAPO CHISAKULA ,2nd Respondent V ■ ■ ■■ ■ ■: J. K. CHISAKULA 3rd Respondent CORAM: Gardner, AJ. S., Sakala and Chaila, JJ. S., 5th March, 1991 and 10th September, 1991 •’ ' . . Jf ‘ -• . . - Messrs. Mwape and Co. for the appellant Messrs. Lloyd Siame and Co. for the respondents ' ? V .•^5’ J U D G M E N T Gardner, AJ. S., delivered thg judgment of the court. ■ *0 ; r • J ■ - I • . • " . ■' ■ ■ i i This is an appeal against a High Court judgment dismissing a claim for possession of Plot No. 20 Lumumba Drive, Chifubu.^mesne profits. ' — . ■ The fe^s of the case were that the appellant guaranteed the payment of a debt due to Grindlays Bank International (Zambia) Limited. When that debt was not repaid in accordance with the appellant’s j guarantee the building which is the subject of this appeal was sold by Grindlays Bank to the respondents. As the premises were the subject of a mortgage to the Zambia National Building Society and the appellant was in default with the repayments, the assignment to the respondent was executed by the Building Society. The appellant claims that at the time of the sale Grindlays Bank were not entitled to possession of the premises. The learned trial judge found as an - J2 - undisputed fact that Grindlays Bank had evicted the appellant from the premises and had put the respondents into possession as intending purchasers and that the respondents are now the registered owners of the property. ■. ^.^4 • • ••••- • • •» . V • • ; 1 •, . ' . Ji There was evidence that the respondents entered into occupation of the premises in May 1973 and the registered assignment to the respondents was dated the 2nd March, 1987. Mr* Mwape on behalf of the appellant argued that, as the learned trial judge found that at all material times the appellant was the registered proprietor of the property and as the respondents took possession of the propertysand had paid no rent, they had unjustly . enriched themselves and the appellant was entitled to mesne profits. We will comment at once that by saying that at all material times the appellant was the registered proprietor the learned trial judge was referring to the time before the respondents became the registered proprietors. The fact that the appellant was the earlier registered proprietor did not prevent the respondents from acquiring a legal right to occupy the property. It is clear that, from the time that the respondents became the registered owners of the property, their title was, in the absence of evidence of fraud or error, unassailable under the provisions of sections 54 and 59 of the Lands and Deed Registry Act Cap 287. There was no evidence of fraud or error in this case and, consequently, the respondents, having acquired a good title and the learned trial judge haivng found as a fact that they took possession asimocent purchasers value, their right to possession as such purchasers was from the inception acquired bona'fide. There may be cases where persons who are granted possession by trespassers may themselves be sued for damages or mesne profits (see Clerk & Lindsell on Torts, Thirteenth Edition, para 1363) but, in this case we find that the respondents acquisition of a good title to the property protected them from any claims in respect of their prior occupation of the property. In thoacircumstances, no claim lies against the respondents and we agree with the learned trial judge that the action against them was misconceived. c- .../J3 ... - J3 - The appeal is dismissed with costs to the respondent ■i- ft B. T. GARDNER ACTING SUPREME COURT JUDGE E. L. SAKALA SUPREME COURT JUDGE M. S. CHAILA SUPREME COURT JUDGE A & ■ 'W 'A ■ fe'iA •tibM •5- *c. S3!