Investrust Merchant Bank Limited and Anor v Ebrahim Yousuf (APPEAL NO. 85A/2002) [2006] ZMSC 65 (13 July 2006)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA APPEAL NO. SSA/2002 (CIVIL JURISDICTION) BETWEEN: INVESTRUST MERCHANT BANK LIMITED SIMBEYE ENTERPRISES LIMITED 1 ST APPELLANT 2ND APPELLANT AND EBRAHIM YOUSUF RESPONDENT Coram: Sakala, 0, Chibesakunda and Silomba, JJS on 22nd June 2005 and 13th July 2006. For the Appellants: Mr. A. A. Musa of Messrs Adams and Company For the Respondents: Mr. M. Mutemwa of Messrs Mutemwa Chambers & Mrs. N. Mutti of Messrs Lukona Chambers RULING Chibesakunda, JS, delivered the Ruling of the Court The delay in delivering this motion is deeply regretted. This was due to the fact that one of the members on the Coram of the bench, which sat, was indisposed from September 2005 to April 2006. The delay therefore is due to circumstances beyond our control. , R2 In this Ruling we will be using the designation each of the parties had in the appeal before us. This is an application under Order 78 of the Rules of the Supreme Court as read with Order 20 of the Rules of the Supreme Court 1999 Edition. CJ Before dealing with the issues raised in the motion, in order to do justice to these issues, the brief history of this cause of action has to be restated. The 1st and 2nd Appellants before the High Court were the 1st and 2nd Plaintiffs and the Respondent was the Defendant. The Appellants instituted these proceedings against the Respondent claiming that the Respondent had breached mortgage agreement between them and as per clause 7 of this mortgage agreement the 1st Appellant had a right to sell the mortgaged property to the 2nd Appellant. During the course of these proceedings a number of interlocutory and counter applications were made as catalogued in our Judgment. The last of such interlocutory applications was this motion determining the following preliminary points:- 1) That the 1st Appellant's bank had failed to comply with Order 30 rule 14 of the High Court Rules as made mandatory by the orders of injunction made on 2th July, 1999, and 3rd September, 1999, respectively. - -- --------------- - R3 2) That the Mortgagee has not exercised the power of sale under the mortgage and evicted a lawful tenant of the mortgaged property as required within the statutory requirements. 3) That the sale of property to L. Simbeye Enterprises Limited be set aside de nova on the ground that the said sale was completed in contempt of the Orders of this court and () furthermore that the sale was not effected at the best possible price. 4) That on the basis of the aforementioned the sale of the said property be declared null and void. 5) That the order removing the caveat be set aside and any subsequent registration after the date of the registration of the caveat be removed from the Registration of Deeds and the title of the property be restored to the defendant. The High Court ruled that, "1} a Mortgagee in exercising the power of' sale under Mortgage is required to proceed under Order 30 Rule 14 of' the High Court Rules and/or Order BB of' the Rules of' the Supreme Court. 2) a Mortgagee having exercised its power of' sale under the Mortgage can evict a lawful tenant of' the property other than with a Writ of' Possession. 3) a Mortgagee in possession is required to sell at the best possible price {a fair and reasonable valuation} and not just sufficient to realize his debt. 4) in respect to the - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R4 above, any subsequent sale is null and void. I therefore order as prayed with costs.,, The Respondent being aggrieved by that ruling then appealed to this court. He advanced two grounds of appeal, namely: 1) That the learned trial Judge erred in law and in fact in holding that the sale of the mortgaged property by the 1st Appellant to the 2nd Appellant was null and void on account inter alia as provided under Order 30 Rule 14 of the High Court Rules or Order 88 of the Rules of the Supreme Court Rules. 2) That the learned trial Judge erred in fact and in law by holding that the caveat was illegally removed. This was the caveat, which had been taken out by a person known as Yousuf Essa. In the judgment delivered on the 9th of February, 2004, the upshot of that judgment is that the learned trial judge erred in ordering the mortgagees to comply with Order 30 Rule 13 of the High Court Rules in selling the mortgaged property. On the second ground we ruled on the caveat that Yousuf Essa was rightly joined as a party to the proceedings and that he could be joined at any time during the proceedings. These were the issues before us. RS Mr. Musa has come back to this court arguing vigorously that there was a miscarriage of justice. He argued: 1) that we accidentally and or mistakenly and erroneously interpreted or misinterpreted and or relied upon evidence and fact and or statements by the Appellants advocates that do not reliably and accurately support the final analysis of our O judgment. He referred us to our statement at J4, where we to the 1st and 2nd Appellants concluding a sale referred agreement on 15th December, 1998, whereas he argued that that contract in the record of appeal was not only undated as of the day and month when the sale agreement was concluded but had 1999 as the year of the agreement between the 1st and 2nd Appellants and not 1998. He further submitted that our statement at J4, in his view, influenced our conclusion that the interlocutory orders were made after the sale agreement between the 1st and 2nd Appellants. 2) That the agreement between the 1st and 2nd Respondents was not valid as it lacked all the necessary ingredients of a valid contract, which are not signed. So the contract was not valid. 3) That the court overlooked the important facts that there was an order by the High Court dated 2th July, 1999 which read as follows: "UPON HEARING Counsel for the defendant AND UPON READING the affidavit of Ebrahim Yousuf filed herein dated R6 1~h June 1999 particularly in relation to the sale of the mortgaged property pursuant to Mortgage Deed be stayed and the execution is hereby stayed until the Plaintiff complies with Order 30 Rule 14 of the High Court Rules Cap,27 and Order 88 of the White Book ..... " and there was a further order by the same court dated 3rd September, 1999. It also said:- ''IT IS ORDERED that the plaintiff be restrained and an Injunction be granted restraining the Plaintiff from a} Continuing to occupy the property Plot No, 16835 Lusaka without approval or consent of the owner, b} Continuing with renovation and alteration of the said property, c) Proceeding with the sale and purchase of the said property on a Contract between the Plaintiff of the one part and SIMBEYE ENTERPRISES LIMITED and CLIVE BENSON PROPERTY CONSULTANTS of the other part," () He argued that all these orders were issued by a competent court of jurisdiction of Zambia and were duly served on the Appellants' through the Advocate and that these were completely ignored by the Appellants. So t was wrong for this court to state that these orders were made well after the property had been sold. Because of this anomaly this court should re-look at its judgment and review for justice to be done. R7 He made a lengthy argument on the core duty of advocates as officers of the court not to mislead the court in their representations. He went into great length on the high professional expectations and values the court places on the advocates in their performances of their duties before the court. The summary of his arguments on this point is that he reproached the Appellants advocates' failure to display professional integrity in presenting the facts before the court. He went on to submit that the Appellants' advocates misled this court by making references to the documents which were lodged for the registration before the Registrar of Lands of the 2nd Appellant's title to the property in question and representing the date of lodging of these documents as the same date as when the 2nd Appellant's title deed to the property in question was issued. In illustrating this core duty of any advocate appearing before the court, he cited the case of Lungu v the Queen [19631 NRLR 130 and Lord Denning in Discipline of the Law (Rondel V Worsley [19671 1 OB.443. C) Furthermore he argued that this court misinterpreted Clause 7 of the Mortgage Agreement. According to him each time the 1st Appellant wrote to the Respondent demanding compliance with Clause 7 of the Mortgage Agreement the 1st Appellant waived the compliance with 30 days demand in the previous letter. The renewal letter of demand therefore renewed fresh requirement of giving 30 days' notice to the Respondent. Therefore this court's conclusion that there was no requirement of giving 30 days' notice after the last letter of demand • 0 R8 was wrong at law. Therefore this court had to review its own judgment on that point. Mr. Mutemwa in response argued that Mr. Musa had advanced all these arguments before the Supreme Court during the appeal and that the Supreme Court took all these arguments into account before it delivered its judgment on the 9th of February 2004 and that there was nothing new he was raising. Mrs. Mutti agreed with Mr. Mutemwa and further submitted that it was wrong for advocates to be emotionally involved in a matter they are prosecuting before any court. She reproached Mr. Musa's insinuation that the Appellant's advocates fell below expected standard conduct of an advocate. She denied the assertion by Mr. Musa that they misled this court. She went on to submit that Mr. Musa raised a number of issues which he never raised before the court, and as such it was improper for Mr. Musa to raise them now long after the delivery of our judgment of 9th February, 2004. We have considered these arguments. We realize that the date of 15th December 1998 could have been a slip on our part. But be that as it may be, on the important issues, which were raised before this court during the appeal, we can state without any hesitation that that date did not influence the decision of this court. We concluded in our judgment that the property had been sold before these various interlocutory orders, which to a very large extent made a mockery of ------- --- - - R9 the administration of justice, because of the order at page 44 of the record of appeal which we quote. "UPON HEARING Counsel For the Parties, herein, it is ordered that the caveat placed by the Defendant on the Mortgaged Property, known as Plot 16835, Freedom Way, Lusaka, and sold by the Plaintiff to Simbeye Enterprises Limited, upon an express power of Sale contained in the Mortgage Deed between the Plaintiff and the Defendants, dated 2T April, 1998, be lifted, Forthwith. The costs of and occasioned by this matter be borne by the Defendant, in any event. Dated the 1flh day of June 1999 Signed JUSTICE JC MUTALE" This was the first interlocutory order made by the High Court. You can see from the record there was no appeal against that order. Also in our Judgment we held that the 1st Appellant as a mortgagee was O correct to have sold the property without complying with Order 30 Rule 14. Also we held that, "on the record before us we find no evidence to show that the K200 million as a purchase price for the mortgage property came as a result of fraud or connivance between the 1st and Z'd Appellants'~ We held that, "we are satisfied that this price resulted from the advertisements in both the Daily Mail and The Times of Zambia and as such there was no fraud." ' . RlO The view, therefore, we take now is that the points being canvassed by Mr. Musa are mainly to re-litigate the appeal before this court. In a plethora of cases we have time and again pronounced that there has to be finality to litigation. Also in numerous authorities we have pronounced that this court has no such powers of reviewing its own decision, unlike the High Court. We do not have a mandate to review our own judgment as suggested by Mr. Musa. We, therefore, dismiss this motion as having no merit with costs. E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT S. S. Silomba SUPREME COURT JUDGE 0