Infinity Television Ltd v Chamba Valley Rose Gardens (SCZ 8 39 of 2006) [2008] ZMSC 135 (17 June 2008)

IN THE SUPREME COURT OF ZAMBIA SCZ/8/39/2006 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: Appeal No. 103/2006 INFINITY TELEVISION LIMITED APPELLANT AND CHAMBA VALLEY ROSE GARDENS ODY'S WORK LIMITED ODDEYSSEAS MANDENAKIS THE ATTORNEY GENERAL 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT 4th RESPONDENT CORAM: Chibesakunda, Mushabati, JJS and Kabalata, AJS on 2nd, 29th August 2006 and 17™ June , 2008. For the Appellant: W. M. Kabimba, W. M. Kabimba & Co. For the 1st Respondent: Prof. P. Mvunga, Mvunga Associates with Mrs. N. Mutti of Lukona Chambers For the 2nd and 3rd Respondents: Hon. S. Sikota MP, Central Chambers For the 4th Respondent: D. Y. Sichinga, Chief State Advocate, Attorney General's Chambers. JUDGMENT Case referred to: (1) Bank of Zambia vs. Jonas Tembo and Others (2002) ZR103 Other works referred to: (1) Odgers on Court Actions, 24th edition, 1996 at page 245-246 Kabalata, AJS, delivered the judgment of the Court The delay in delivering this judgment is deeply regretted. This was due to pressure of some other Court work. In this appeal we shall refer to the Appellant as the Plaintiff and the Respondents as Defendants as this is what they were in the court below:- On the 7th February, 2006, the Plaintiff caused to be issued out of the Commercial Registry a Writ of Summons against the four Defendants claiming the following reliefs: 1. Specific Performance of the Contract dated the 23rd December 2003 made between the Plaintiff Company and the 1st Defendant Company for the sale by the 1st Defendant to the Plaintiff of the property known as Stand 19028, Lusaka 2. An order for delivery of possession to the Plaintiff of Stand No. 19028 on the terms contained in the Contract of Sale dated 23rd December 2003 between the Plaintiff and the 1st Defendant 3. An Injunction restraining the 2nd and 3rd Defendants from doing whether by itself or agents or otherwise howsoever, the following acts or any of them, that is to say, enter the premises and carry out any earth works or whatever works on the property known as Stand 19028 Lusaka, until further order of the court. 4. A declaration that the Agreement in writing dated 23rd December 2003 entered into between the Plaintiff and 1st Defendant in respect of Stand No. 19028 Lusaka is a binding and enforceable contract on the terms contained in the said agreement. 5. A declaration that the Certificate of re-entry which was registered on the 10th February 2004 was null and void as it did not comply with the provisions of the Lands and Deeds Registry Act, Cap of the Laws of Zambia. 6. A declaration that the Certificate of Title No. 26241 issued on the 10th June 2004 to the 2nd Defendant was null and void for it was issued at the time when there was a Caveat in place and the 4th Defendant had no power and lacked capacity to issue a state lease to the 4th Defendant under the circumstances. 7. A declaration that entry Numbers 10,11,12,13,14,15 and 16 purportedly made on the Land Register and instruments registered in the land register, pertaining to stand 19028 from the 24th December 2004, are null and void as they were entered without the consent of the Plaintiff who had placed a Caveat and without any Court Order and in breach of Section 79 of the Lands and Deeds Registry Act, Cap 185 of the Laws of Zambia. 8. Further and in the alternative damages for breach of the contract dated the 23rd December 2003 and for breach of Section 79 of the Lands and Deeds Act Cap 185 of the Laws of Zambia respectively. 9. Any other relief the court might deem fit. 10. Costs of and incidental to the proceedings. On 13th February, 2006, the 2nd and 3rd Defendants filed a notice to raise a preliminary objection namely that: "The Supreme Court having settled the question of ownership of stand No. 19028, Lusaka in two Consent Orders dated 14th November 2005 and 27th January 2006 respectively, this Honourable court has no jurisdiction to deal or entertain the same question or issues. Further the 2nd and 3rd defendants will submit that the Supreme court having settled the matter of ownership of Stand 19028, Lusaka these proceedings are an abuse of judicial process and ought to be dismissed with costs to the said Defendants." On 23rd February 2006, after hearing submissions and arguments by counsel on the Notice to raise a preliminary objection, the learned trial judge ruled that he had no jurisdiction to determine the whole action as the matter had already been decided upon by a court higher than his. Consequently, he dismissed the whole action and hence this appeal. The Appellant has advanced five grounds of appeal and these are: 1. The court below misdirected itself in law when it held that a person not a party to the proceedings is bound by the ruling made in those proceedings where he is not a party. 2. The court below erred in law and fact when it dismissed the whole of the Plaintiffs case even against the 1st Defendant and the 4th Defendant who did not dispute the Court's jurisdiction to hear the matter, and especially the 1st respondent who filed a Memorandum of Appearance and Defence in the matter. 3. The court below erred in law and fact when it upheld the notice to Raise preliminary objection on the ground that the ownership of Stand No. 19028 Lusaka had already been settled in the Supreme Court in two Consent orders when the Appellant was clearly not a party to both Consent Orders. 4. The court below erred in law and fact when it failed to adjudicate on the various outstanding issues between the parties and which issues were not a subject of the said Consent Orders. 5. The court below erred in law and fact when it refused to grant the Appellant an Order of Interim Injunction when the documents on record clearly showed that the Appellant had a legal interest in Stand No. 19028 Lusaka which interest needed to be protected by way of an Order of injunction pending determination of the matter. In his oral submissions before this court; Professor Mvunga, on behalf of the appellant argues that the appellant ought to have been heard by the trial court below. Whilst the two Consent orders were not in issue, Counsel states that the issue centred on the refusal by the court below to hear the appellant's claim containing numerous triable issues on the basis of the principle of res judicata. Prof. Mvunga further submitted that res judicata applied between the same parties and same subject. There had to be finality in the court process and that finality was between the same parties. He boldly stated that a non party cannot be bound by a decision of a court to which he is not a party. Prof. Mvunga cited numerous authorities in support of his position. He went on to say that the fundamental principle of our justice system requires that all the parties be heard. Since the appellant was not a party to the consent Orders the court below denied the appellant below access to be heard in an action where there were numerous triable issues, like issues relating to the sale, caveat etc. Prof. Mvunga further submitted that the court below relied on the Consent Orders to deny the appellant a hearing and yet those Consent Orders said nothing about the appellant or that he should not be heard. In conclusion, Prof. Mvunga said that the doctrine of res judicata should be raised as a special plea by the defence and yet none of the respondents raised this plea. Prof. Mvunga reminded us that there are six issues upon which the court below should have adjudicated and they appear at page 17 of the record of appeal. He also stated that the question for damages has not been settled. Mrs. Mutti learned Co-Counsel for the appellant informed the court that she adopts the submissions and arguments advanced by Prof. Mvunga and has nothing to add. On behalf of the 1st 2nd and 3rd Respondents Mr. Kabimba informed the court that they had filed two sets of heads of arguments which he relies upon. According to him this appeal is a indirect way to attempt to set aside the Consent Orders. With regard to the issue of damages, Counsel submits that it should be against all the Respondents in this action. Since the issue of damages is not there in the Writ or statement of claim, it did not go before the judge in the court below. Hon. Sikota adopted the submissions of Mr. Kabimba as his own and relied on the nd rd 2 and 3 Respondents heads of arguments. He however wished to emphasize that the question before the court below was "who had good title to the land in question?" He pointed out that a certificate of title was issued in first respondent's name. After re-entry procedures, the land was offered to the second respondent and title issued. Hon. Sikota emphasized that at no time at all was a certificate of title issued to the appellant. Mr. Sikota states that the appellants are trying to claim title through the first respondent, their root. Since the root collapsed with the two Consent Orders, the appellants cannot claim title to the land, he argued. In conclusion, Hon. Sikota submitted that in this case the only option left to the appellant was to claim damages as against the first respondent. Besides, he argued that they could not claim specific performance or damages against the 2 nd rd th 3 and 4 respondents because the contract under which they wish to claim specific performance or damages was between themselves and the first respondent and none of the other parties. Hon. Sikota submitted that the 2nd, 3rd and 4th respondents must be released from this action. Mr. Sichinga, the then learned Chief State Advocate informed the Court that he wished to adopt the submissions advanced by his learned friends, Kabimba and Sikota and the written heads of arguments filed on 25th August 2006. In response, Prof. Mvunga submitted that it was the court below which had to determine who had to be released from this action and that res jundicata should be raised as a plea and not by way of preliminary issue. It should be raised as a defence. Mrs. Mutti drew the courts attention to the judgment of the Lands tribunal and the decision it reached in relation to this matter, which shows that the appellant's interest was protected up to the time of judgment but when the respondent appealed there was no way the appellant could have known what was happening between the respondents before they entered into the two Consent Orders. Mrs. Mutti further submitted that when the appellant realized this it took action and commenced action in the lower court. The foregoing were the arguments and submissions in this appeal. We have carefully reviewed the arguments and the submissions by Counsel in some detail in order to narrow down the issues for determination as raised by the grounds of appeal. We have also carefully perused the judgment appealed against. A critical examination of the grounds of appeal and the arguments clearly shows to us that they raise three questions for determination; namely: Whether the two consent judgments precluded the court below from hearing the other claims disclosed in the appellants writ and statement of claim filed in the court below; and whether the plea of res judicata was properly raised before the court below and if it was, was the court in order to dismiss the whole issue on the principle of res judicata. Indeed, as conceded by Prof. Mvunga Counsel for the appellant, the two Consent Orders are not in issue. The issue centres on the refusal by the court below to hear the appellants claim containing numerous triable issues. The court below dismissed the whole issue on the principle of res judicata. The statement of claim attached to the writ of Summons filed by the plaintiff (now Appellant) in the court below appears at page 11 to 14 of the record of appeal and it reads: 1. The Plaintiff is and was at all material times a company incorporated in Zambia and carrying on business as a private television broadcaster. 2. The 1st defendant is and was at all material times a company incorporated in Zambia and the registered owner of Stand No. 19028 Lusaka. 3. The 2nd Defendant is a company incorporated in Zambia in which the 3rd Defendant is a Shareholder and Director. 4. The 4th Defendant is an appointed agent of the President of Zambia in the Ministry of Lands responsible for Land administration in Zambia. 5. By an Agreement in writing dated the 23rd December 2003, it was agreed between the Plaintiff and the 1st Defendant that the 1st Defendant shall sell to the Plaintiff and the Plaintiff should purchase from the 1st Defendant that the 1st Defendant Stand No. 19028 at consideration of US$100,000-00 of which US$20,000-00 was payable upon exchange of contract and the balance in equal monthly instalments of US$6,000-00 per month. 6. In consequence of the aforesaid agreement in para (5) above, the Plaintiff duly paid to the 1st Defendant a total sum of US$38,650-21 and the Plaintiff has been ready and willing to complete the said Agreement. The Plaintiff through its Advocates also placed a Caveat on Stand No. 19028 as Intending Purchaser on 24th December 2003 registration of which was effected on the Land Register. 7. The 1st Defendant has not completed the said sale as per terms of the Agreement of 23rd December 2003 and the said property has not been conveyed to the Plaintiff. 8. On or about the 10th June 2004 and without giving any Notice or at all to the Plaintiff as Caveator, the 4th Defendant acting on behalf of the President purported to grant a lease of 99 years to the 2nd Defendant Company in respect of Stand No. 19028 notwithstanding the Caveat lodged by Messrs Christopher Russel Cook and Company on 24th December 2002 on behalf of the Plaintiff as Intending Purchasers. 9. The said Caveat which was registered on 24th December 2004 has not be removed or at all and continues to subsist to date. lO. On or about the 18th November 2005 the 4th defendant allowed the 3rd defendant to register a caveat against the said Stand 19028 when another earlier Caveat was still in force contrary to the provisions of Section 79 of the Lands and Deeds registry act Cap 185 of the Laws of Zambia. 11. Notwithstanding the existence of a Contract of Sale between the Plaintiff and the 1st Defendant, the 1st Defendant's servants and/or agents on or about the 27th January 2006 purported to sell to the 2nd Defendant Stand No. 19028, the property being the subj'ect matter of the Contract between the Plaintiff and the 1st Defendant at a consideration of K250,000,000-00. 12. By reason of the aforesaid matters, the Plaintiff has suffered loss and damage. AND the Plaintiff claims: 1. Specific Performance of the contract dated the 23rd December 2003 made between the Plaintiff Company and the 1st Defendant Company for the sale by the 1st Defendant to the Plaintiff of the property known as Stand 19028, Lusaka. 2. An order for recovery of possession by the Plaintiff of Stand No. 19028 on the terms contained in the Contract of Sale date 23rd December 2003 between the Plaintiff and the 1st defendant. 3. An Injunction restraining the 2nd and 3rd Defendants from doing whether by itself or agents or otherwise howsoever, the following acts or any of them, that is to say, enter the premises and carry out any earth works or whatever works on the property known as Stand 19028 Lusaka, until further order of the Court. 4. A declaration that the Agreement in writing dated 23rd December 2003 entered into between the Plaintiff and the 1st Defendant in respect of Stand No. 19028 Lusaka is a binding and enforceable contract on the terms contained in the said Agreement. 5. A declaration that the Certificate of Re-entry which was registered on the 10th February 2004 was null and void as it did not comply with the provisions of the Lands and Deeds registry act, Cap of the Laws of Zambia. 6. A declaration that the Certificate of Title no 26241 issued on the 10th June 2004 to the 2nd Defendant was null and void for it was issued at the time when there was a Caveat in place and the 4th Defendant had no power and lacked capacity to issue a state lease to the 4th Defendant under the circumstances. 7. A declaration that entry numbers 10,11,12,13, 14,15 and 16 purportedly effected on the Land Register made and instruments registered in the land register, pertaining to Stand 19028 from the 24th December 2004, are null and void as they were entered without the consent of the Plaintiff who had placed a Caveat and without any court order and in breach of section 79 of the Lands and Deeds registry Act, Cap 185 of the Laws of Zambia. 8. Further and in the alternative damages for breach of the Contract dated the 234rd December 2003 and for breach of section 79 of the Lands and Deeds Act Cap 185 of the Laws of Zambia respectively. Whilst we accept the fact that the two Consent Orders of this court are not issue, we are worried that in spite of a long list of claims as shown by the statement of claim, the court refused to hear them on the grounds of res judicata, which plea was raised by way of a preliminary objection by the respondents. We wish to point out that the defence of res judicata cannot be raised unless it is specially pleaded in the defence. However, none of the respondents raised this plea in their defence to the plaintiff's statement of claim. Furthermore, the learned authors of Odgers on Court Actions 24th edition (1996) at page 245-246 have this to say:- "the cause of action in such a case must be the same in both actions, and both actions must be brought against the same defendant or against persons jointly liable or the same cause of action.." In Bank of Zambia vs. Jonas Tembo1 we held that:- (i) In order that a defence of res judicata may succeed it is necessary to show that the cause of action was the same, but also that the plaintiff had an opportunity of recovering and but for his own fault might have recovered in the first action that which he seeks to recover in the second. (ii) A plea of res judicata must show either an actual merger or that the same point had been actually decided between the same parties. We entirely agree with the submissions of Prof. Mvunga, Counsel for the appellant that the court below should not have dismissed all the claims. The court below should have heard the other claims which were not the subject of the Consent Orders. Those issues appear on page 17 of the record of appeal at paragraph 6 of the appellant's affidavit in support of summons for an order of interim injunction pending appeal. They are: 6. That I reasonably believe that there are serious issues to be tried in this matter and which issues have never been adequately determined or at all in any action. Some of such issues are thefollowing:- (i) There are currently two current Certificates of Title Nos. L3521 and 28241 issued to the 1st and 2nd respondent respectively in respect of the same piece of land namely Stand No. 19028 Lusaka. There is now produced and shown to me marked "SN/3" and "SN4" true copies of the said Certificates of Title. (ii) At the time the 2nd respondent was purportedly offered the said Stand No. 19028 Lusaka, there was subsisting Caveat lodged by the Appellant on 23rd December, 2003 as intending purchasers and which Caveat has not been withdrawn or removed. There is now produced and shown to me marked "SN/5" a true copy of the said Caveat duly registered on the Lands Register. (Hi) That the Consent Order executed by the Respondents on 27th January 2006 was executed as a result of the payment of a sum of Two Hundred Fifty Million Kwacha (K250,000-00) to one Luwely Martha Simfukwe a Director in the 1st Respondent Company and who deposed to the Affidavit in Support of the Consent Order. There is now produced and shown to me marked "SN/6" a true copy of a note on which the said Martha Luwely Simfukwe collected cheque Nos. 00029, 00030,00031, totaling K250,000,000-00. The payment of the said sum of K250.000.000-00 is a material fact that was not disclosed to the Supreme Court when the Consent Order was being executed. (iv) That infact the Affidavit in Support of Consent Order deposed to by the said Luwely Martha Simfukwe was actually prepared by the Advocates for the 2nd and 3rd Defendant as shown by the jacket to he said Affidavit which is now produced and shown to me marked "SN/7" as proof thereof. (v) That a Certificate of Re-entry entered on Stand No. 19028 and which purportedly permitted the 4th Respondent to offer the land in dispute to the 2nd Respondent was erroneous as the same was against National Hotels Development Company who were not Title Holders to Stand No. 19028 Lusaka. There was also the issue of damages claimed by the Appellant in the alternative for breach of contract dated the 23rd December 2003 and for breach of Section 79 of the Lands and Deeds Act Cap. 185 of the Laws of Zambia. Those claims should be heard and the matter proceed to trial. Indeed we wish to emphasize the point here that the fundamental principle of our justice system requires that all the parties be heard. In the event, we allow this appeal and order that the matter be remitted back to the court below for hearing and trial before another judge. There will be no order for costs. L. P. CHIBESAKUNDA C. S. MUS SUPREME COURT JUDGE SUPREME COURT JUDGE ACTING SUPREME COURT JUDGE 20