Million Hamung'ande & Others v Mulopa (Appeal 84 of 2019) [2020] ZMCA 33 (26 February 2020)

J1 IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 84/2019 BETWEEN: MILLION HAMUNG'ANDE NELSON CHIDAKWA FRANK MULILALILA ESTHER CHIYUNI FAIDES MAKIYI SELINA MOONGA SOFIA HAMUNG' ANDE AND 2 G FE" 2020 1st APPELLANT 2nd APPELLANT 3rd APPELLANT 4th APPELLANT 5th APPELLANT 6th APPELLANT 7th APPELLANT WILLIAM MULOPA RESPONDENT CORAM: CHISANGA, JP, SICHINGA AND NGULUBE, JJA. On 18th February 2020 and 26th February, 2020. For the Appellants: B. Sitali, Messrs Butler & Company For the Respondent: M. Siansumo & C. Sianondo, Messrs Malambo & Company JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. 2. 3. 4. Bank of Zambia v Jonas Tembo and Others (2002) Z. R.103. Attorney General v Marcus Kampumba Achiume (1983) ZR.1 Societe Nationale des Chemis De Pur Congo (SNCC) v Joseph Nonde Kakonde (2013)3 ZR 51 Henderson v Henderson (1843- 1860) ALL ER 378 Other works referred to: 1. Halsbury's Laws of England, 4th Edition, Vol. 16, paragraph 1528 J2 Introduction 1. This is an appeal against a Judgment of the High Court (Kaunda - Newa J) delivered on 6th March, 2019 in which the Court found the matter res judicata with regard to the respondent owning the land in Namoomba village as it was adjudicated upon and that all the parties who were interested in the said land should have joined the proceedings in the Subordinate Court so that they would have had a right to be heard. The court further found that the certificate of ownership of the land that was issued to the 2nd appellant was invalid as it covered land that was given to the respondent in the Judgment of the Subordinate Court and ordered its cancellation. 2. The court went on to declare the respondent as the owner of the land in Namoomba village and restrained the appellants and the intervenors from disturbing his quiet enjoyment of the land. The appellants were ordered to remove any structures they had placed on the land within thirty days of the Judgment, failing which the respondent would be at liberty to commence contempt proceedings against them. Background J3 3. The brief background to this appeal is that the respondent (plaintiff in the lower court) commenced an action by way of writ of summons seeking an order of injunction, requiring the appellants to remove or demolish the structures erected on the respondent's land and restrain the appellants from entering the respondent's land or interfering with his quiet enjoyment of the land. The respondent also sought a declaration that he, as beneficial owner, is entitled to exclusive possession of the land situate at Namoomba. He further sought damages for trespass, with costs. 4. The statement of claim states that sometime in March, 2015, the appellants and their agents or servants entered onto the respondent's land and cut trees and cleared the land. The respondent reported the matter to the Sikoongo Chiefdom Committee who admonished the }st appellant for interfering with the respondent's land but he ignored the warning. The piece of land was subject to litigation under cause number 2011 / LCA/ 07 in the Subordinate Court at Siavonga, in which the court found that the J4 respondent was the owner of the land, contrary to the claims by one Isaac Mwanja who also claimed ownership. 5. The statement of claim also averred that the respondent was the owner of a piece of land in Namoomba village, Southern Province identified on a sketch plan dated 12th May, 2007. 6. The 1st appellant in his defence stated that the respondent encroached on his land in June 2015 and that the intervention of Chief Sikoongo saw the 1st appellant's son, Nelson Chidakwa, the 2nd appellant herein, being given a certificate of ownership of the land by Chief Sikoongo. 7. The 2nd appellant, in his defence stated that Chief Sikoongo resolved the matter in his favour and that he was given a certificate of ownership. He denied having been a party to cause number 2011/LCA/07 and stated that the land in issue belonged to him. 8. The intervenors filed their defence on 26th July, 2017, denying entering the respondent's land and stated that in fact, it was the respondent who encroached on their land. They also denied having been parties in the cause number 2011/LCA/07. They stated that JS the land the respondent claims includes their shrines, fish ponds, family graves and fields and was never given to the respondent by Chief Sikoongo. Evidence before the lower court 9. PWl, a friend to the respondent's late father, stated that the respondent was bequeathed the land by his father, Raymond Mulopa. That he and the said Raymond Mulopa went to search for land in 1981, which they found unoccupied as it was virgin land. He stated that the said Raymond then settled on the land and built houses there and that sadly, Raymond Mulopa died in 1996. That upon his death, it was decided that his family would remain on the land. He stated that the respondent was subsequently given a letter relating to the ownership of the land by the Chief and submitted the letter to the council. 10. The land was subsequently surveyed and survey diagrams were obtained. Later, the 1st appellant went and settled on the land and when the respondent complained to Sikoongo Chiefdom Committee, they told him to share the land with the appellants. J6 11. PW2, William Mulopa's testimony was that his late father settled on the land in 1980 and lived on it up to the time of his death in 1996. Thereafter, he went to see the chief and was given a letter of ownership of the land. He stated that after that, he had the land surveyed but had no money to process title and the process stalled. He informed the Court that the 1st and 2nd appellants started making claims of the land and that the 2nd appellant fenced off part of the land. He also informed the court that he had earlier sued Isaac Mwanja in the Subordinate Court at Siavonga and obtained Judgment in his favour. 12. The first witness for the appellants was Frank Mulilalila, the 3rd appellant, whose testimony was that in the 1970s, the Mulilalila family decided to give land to a man named Steven Slay for him to grow bananas. It was his testimony that Slay then built a house on the said land which house the respondent's father occupied when Slay fled the Zimbabwe liberation war. That after Raymond Mulopa died, his children started selling the land and in 2009, he went to see Chief Penias Mwiimbwa and the committee of J7 headmen who ruled that the land did not belong to the respondent and he was ordered to give back the land but he refused to do so. The land comprised of fields for the 1st to 5th appellants, a grave for the 1st appellant's sister and a family shrine. The chief eventually gave a certificate of title to the 2nd appellant. 13. When referred to the Judgment of the Subordinate court on appeal from the local court, he denied knowing Isaac Mwanja and stated that he was not aware of Isaac's claim for the land in dispute. He could not recall the year he settled on the land and did not know the extent of the land he claimed. 14. The second witness for the defence was Nelson Chidakwa, the 2nd appellant herein. He stated that he had lived on the said land since he was born and that Steven Slay was given land and built a house but when the Zimbabwe liberation war broke out, he left and other people also ran away. He stated that Raymond Mulopa who was a fisherman moved into Slay's house and lived there until he died. After Raymond Mulopa's death, his son, the respondent J8 herein started selling land. He testified that they only returned after the war ended in the 1980's. 15. Faides Makiyi, the 5th appellant's testimony was that Chief Chali gave permission to Slay to settle on the land and he built a house. That Raymond Mulopa went there as a fisherman and lived with him. When Slay died, Raymond asked if he would occupy his house and that she did not know that the respondent was given land by the chief in 2002. 16. Penias Mwiimbwa testified that he gave the respondent land to live on which was near the banks of the river. He recalled having written a letter. 17. Sylvester Kabonje, the chiefs secretary stated that in 2015, he received a complaint that the respondent's family were selling land in the area. That to his knowledge they were only given the land that was occupied by Slay. It was later resolved that the respondent was not indigenous to the village and that the land belonged to the community. Consideration of the matter by the Court below J9 18. After considering the evidence before it, the court made the fallowing findings of fact- (i) That when Mr. Slay fled, the respondent's father moved into his house. (ii) That there were no people living on the land when Raymond Mulopa moved onto it. 19. To resolve the dispute, the court asked the question whether the issue of ownership of the land by the respondent was res judicata. In answering the question, the court found that there was a merger of the claim before it and that which before the Local Court and the Subordinate Court and that the respondent was found to be the owner of the land by the Subordinate Court on 14th July, 2011. The court further found that the said Judgment had not been appealed against or set aside and that to begin to resolve issues on the extent of the land the respondent was given would be to relitigate the matter decided by the subordinate court. Further, the court found that the matter was res judicata and that all the parties who were J10 interested in the land should have joined the proceedings in the Subordinate Court so that they could have been heard. The court cancelled the certificate of ownership that was given to the 2nd appellant and declared the respondent owner of the disputed land. The Appeal before this Court 20. Dissatisfied with the Judgment of the lower court, the appellants lodged this appeal, advancing the following grounds of appeal - (i) The court below erred in law and in fact when it held that the matter before it was res judicata. (ii) The court below erred in law and in fact when it failed to appreciate that the appellants and all the intervenors were not party to the proceedings in the Local and Subordinate Court and that the land they claimed was different from the one claimed by Isaac Mwanja and that the matter was not res judicata as the parties and the subject matter were different. (iii) The lower court contradicted itself by making a determination on the matter which it said was res Jll judicata. If indeed it was res judicata, the court should have dismissed the matter for want of prosecution. (iv)The lower court erred in law and in fact when it ignored the letter from the chief to the respondent dated 16th September, 2002 allocating the respondent a small piece of land. (v)The court below erred in law and in fact when it ignored all the evidence showing that the respondent's father had merely requested for permission to live in one of the houses left by one Stephen Slay, and that this was the small piece of land which was given to the respondent in the letter dated 16th September, 2002. 21. The appellants' advocates filed heads of argument and in arguing grounds one and two submitted that for a matter to be considered res--judicata, the following conditions must be satisfied- {i) Firstly, that the issues must be the same as was adjudicated upon in the previous case; and (ii) Secondly, the parties must be same in the present matter as in the previous matter where the issues had been adjudicated. J12 22. We were referred to the case of Bank of Zambia v Jonas Tembo and Othersl where it was held that- "In order for a defence of res-judicata to 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. A plea of res-judicata must show either an actual merger or that the same point had been actually decided between the same parties." 23. It was contended that in the matter which was adjudicated between the respondent and the said Isaac Mwanja in the Local Court and the Subordinate Court, the subject matter was a different piece of land that Isaac Mwanja claimed belonged to him and which he claimed had been encroached upon by the respondent. That the piece of land which Isaac Mwanja claimed in the action before the Local Court and the Subordinate court is different from the land that each of the appellants are claiming. It was further contended that it is clear that the subject matter in the J13 earlier case is different from the subject matter in the case before this court. 24. Additionally, it was submitted that none of the appellants were party to the matter between the respondent and Isaac Mwanja in the Local Court and Subordinate Court. According to the appellants, the finding of fact made by the court below that the appellants were party to the proceedings before the Local Court and the Subordinate Court is not only perverse but flies in the teeth of the evidence on record and should be reversed. In support of this argument, we were referred to the case of Attorney General v Marcus Kampumba Achiume2. 25. It was submitted that since none of the appellants were party to the proceedings before the Local Court and the Subordinate Court, the other requirement for res-judicata is absent in this matter and that since both pre-requisites are lacking, the judgment of the court below should be set aside. 26. On ground three, it was contended that the court below was erroneous to delve into the merits of the case after determining that the action was res-judicata. J14 27. With regards to ground four, it was contended that the court below did not take into consideration the evidence which was before it. That Chief Sikoongo and author of the offer letter dated 16th September, 2002 informed the court that he only gave the respondent a small piece of land where Mr. Slay had built his house, the same being the house which was later occupied by the respondent's father, Raymond Mulopa. It was further contended that all the witnesses who testified in the court below stated that the respondent's father used to live in one of the structures which had been left by the said Slay. 28. It was submitted that given the evidence on record, there is no way the survey diagrams produced five years after the land was offered to the respondent can convey the big piece of land than anticipated by the one who gave the respondent the land. We were asked to reverse the findings of fact made by the lower court. 29. As for the last ground of appeal, it was submitted that the respondent's witness testified that the respondent's father, went to Namoomba village as a fisherman and took occupation of one of the structures which had been left by Stephen Slay. That had the court JlS below taken into consideration the testimonies of the witnesses, it could have arrived at a correct conclusion. 30. The respondent's advocates filed heads of argument on 11th November, 2019. In responding to grounds one and three, it was submitted that the court below did not find that the whole action was res judicata. What the court found to be res judicata was the issue of ownership of the land in question by the respondent. 31. Further, it was the respondent's contention that if the land 1n question truly belonged to the appellants, the 7th appellant would have not testified in another action that the land in dispute belonged to Isaac Mwanja. In the premise, it was submitted that the appellants had an opportunity in the action between the respondent and Isaac Mwanja to lay a claim to the land subject of this action. 32. In addition, it was contended that there is enough evidence on record to show that the land subject of the dispute under the matter which was before the Subordinate Court is the same land subject of this appeal. Given the foregoing, it was submitted that the court below was on firm ground when it held that the issue of ownership of the land is res judicata and proceeded to make a J16 determination on the matter. We were urged to dismiss grounds one and three for lack of merit. 33. Regarding ground four and five, the gist of the respondent's submission that his land is restricted to the house that was abandoned by Slay is an attempt to mislead the Court as DW4, the former Chief Sikoongo who was a key witness did not dispute the contents of his letter offering land to the respondent and did not dispute the sketch plan. We were also urged to dismiss grounds four and five for lack of merit. 34. At the hearing, the appellants' Counsel Mr. Sitali relied on the heads of argument filed and submitted that the issue of res judicata whether it relates to the entire claim or part of the action is still governed by the same principles, namely, that the issue must have been adjudicated upon and the parties must be the same. Counsel submitted that the said two requirements are not present. Firstly, apart from the 7th appellant being a witness in the matter before the Subordinate Court, the rest of the appellants were not party to the action before the Subordinate Court. Secondly each of the appellants is claiming their own different and distinct piece of land which is different from what Isaac Mwanja was claiming in J17 the Local Court. It was also Counsel's submission that it is only the second appellant who is relying on a land certificate issued by the Chief to asset his right. Counsel pointed out that having concluded that the matter was res judicata, the lower court was in grave error to attempt to determine the matter on its merit. 35. In response, the gist of Ms. Siansumo's submissions was that the issue of res judicata as discussed by the court below in its judgment relates to the issue of ownership of the land in dispute and that such mention cannot preclude the court from determining the claim presented by the claimant in the court below. She submitted that the appellants, having been aware of the dispute between the respondent and Isaac Mwanja in the subordinate Court, they ought to have applied to Join the proceedings if they truly had an interest in the land 1n issue. Counsel also pointed out that it is only the 2nd appellant who has asserted his rights over the land and that there is no evidence on record indicating that the rest of the appellants are making any claim over the disputed land. 36. In reply, Mr. Sitali stated that there 1s no way the appellants could have been caught by the principle of res judicata with the J18 exception of the 7th appellant who was a witness in the matter before the Subordinate Court because each of them have a separate piece of land and only discovered later that the land the respondent was claiming actually encroaches on their respective pieces of land. He explained that when the matter was commenced in the court below there was initially one respondent who is Million and that the rest of the appellants decided to join as intervenors when they realised that their individual pieces of land where also affected. Decision of the Court 37. We have considered the appeal before us as well as the oral and written arguments by the parties. We are of the view that the main issue for consideration before this court is whether this matter is res judicata. 38. Halsbury's Laws of England, 4th Edition, Vol. 16, in paragraph 1528 state that- "in order that a defence of res judicata may succeed, it is necessary to show that the cause of action was the same, and also that the plaintiff had an opportunity of recovering but for his own fault might J19 have recovered in the first action that which he seeks to recover in the second. A plea of res judicata must show either an actual merger or that the same point had been actually decided between the same parties" 39. The doctrine of res judicata arises in circumstances where a court is faced with a second action similar to an earlier action concluded by a Judgment of the court. The purpose of the principle of res judicata is to support the good administration of justice in the interests of both the public and the litigants, by preventing abusive and duplicative litigation. The case of Societe Nationale des Chemis De Pur Congo (SNCC) v Joseph Nonde Kakonde 5 refers. Its two principles are expressed as being- ( 1) the public interest that courts should not be clogged by re-determinations of the same disputes and; (2) the private interest that it is unjust for a man to be vexed twice with litigation on the same subject matter. It is therefore important that parties to litigation bring forward their whole cases at once. • J20 40. In the celebrated case of Henderson v. Henderson6 , it was held that- "where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole cases, and will not, except in special circumstances, permit the same parties to open the same subject of litigation, in respect of the matter which might have been brought forward as part of the subject in content, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies except, in special cases, not only to points on which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time."(emphasis is ours) • J21 41. In this matter before us, the court below found that the matter before it was res judicata. In support of this appeal, Mr. Sitali has argued that the two elements of the doctrine of res judicata were not present as the subject matter of the case before the Subordinate Court and the one before the court below are different and the parties in the matter before the court below were never party to the proceedings in the Subordinate Court. On the other hand, the gist of the respondent's argument is that the court below only pronounced itself on the issue of res judicata in regards to the ownership of the land in dispute and not the main matter before the lower Court. According to the respondent's Counsel, all the appellants were aware of the dispute between the respondent and Isaac Mwanja and therefore they should have applied to join the proceedings if they truly had interest in the subject land. 42. In view of the argument advanced by the respondent we have scrutinized the judgment of the Subordinate Court, as well as other documents on record which relate to the land in dispute. We note that the matter was initially before the local court and subsequently in the Subordinate Court. What is clear is that J22 both the dispute before the High Court and the Subordinate Court arose from the land in N amoomba Village and the parties to both actions are different. It is also clear that the dispute in the matter which was before the Subordinate Court arose in 2011 while the dispute in the present case arose in 2015 when the 2nd appellant is said to have encroached on the respondent's land. 43 . We agree with the submissions by the appellants' Counsel that for the defence of res judicata to succeed, both elements espoused above need to be present in any case. In casu, while the disputed land appears to be the same , the parties in these two separate actions are different and the disputes arose at different times. 44. In the case of Societe Nationale des Chemis De Pur Congo (SNCC) v Joseph Nonde Kakonde already cited above, the Supreme Court indicated that: "Res Judicata is not only confined to similarity or otherwise of the claims in the 1st case and the 2d one. It extends to the opportunity to claim matters • J23 which existed at the time of instituting the 1st action and giving judgment." We are of the view that the matters in case before us arose four years after the Judgment of the Subordinate Court. We find that the Judge in the court below erred in holding that the matter was res judicata. Having determined that the matter was res judicata the Judge proceeded to deal with the merit of the action before her. We note that she concentrated more on the issue of res judicata than the evidence on record. We set aside the Judgment of the lower court and we accordingly send the matter back to the High Court for retrial before a different judge. ····················* ············ F. M CHISANGA JUDGE PRESIDENT, COURT OF APPEAL . ..... e~ ..... . P. C. M NGULUBE COURT OF APPEAL JUDGE.