Ticklay v Attorney General and Ors (APPEAL NO. 57 OF 2021) [2023] ZMCA 206 (30 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 57 OF 2021 HOLDEN AT (Civil NDOLA Jurisdiction) IN THE MATTER OF: SECTIONS 5, 6, 11, 87 & 89 OF THE LANDS AND DEEDS REGISTRY ACT, CHAPTER 185 OF THE LAWS OF ZAMBIA AND IN THE MATTER OF: AND THE REGISTRATION OF HIGH COURT JUDGMENT DATED 30TH MARCH 2006 OUT OF TIME IN RESPECT OF STAND NO. LUS/ 10494 IN THE MATTER OF: AN APPEAL AGAINST THE DECISION OF THE REGISTRAR OF LANDS AND DEEDS PURSUANT TO 0.47, R.25 HCR CAP 27 & 0.44 CAP 28 SUBORDINATE COURT RULES OF THE LAWS OF ZAMBIA AND IN THE MATTER OF : THE RULING OF THE HIGH COURT B E T W E E N: DATED 4TH UGUST 2015 , .,i /, t\>\l\l>UC OF lA;.,,, / � co\liU OF APPE -'I MOHAMED AZIM TICKLAY ti[ _____ }� PELLANT AND � ATTORNEY GENERAL ABDUL MAJID TICKLAY RIFS PROPERTIES LIMITED 18T RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM: Chashi, JJA Majula and Patel, ON: 23rd and 30th August 2023 For the Appellant: W. Mwenya, Messrs Lukona Chambers For the 1st Respondent: M. Katolo (Ms) and C. Watopa, Senior State Advocates Assistant For the 2nd and 3rd Respondents: (1) G. Hakainsi, Messrs L. M Chambers -J 2- (2) M. Chileshe, Messrs Eric Silwamba, Jalasi & Linyama Legal Practitioners JUDGMENT CHASHI, JA delivered the Judgment of the Court. to: Cases referred 1. New Plast Industries The Attorney General v The Commissioner (2001) ZR, 51 of Lands and 2. BP Zambia Pie v Zambia Competition & 2 Commission Others -SCZ Judgment No. 22 of 2011 3. Crossland Chipanda -SCZ Judgment No. 53 of 2018 Mutinta and Bashir Seedat v Donovan (Z) Limited 4. Costa Tembo v Hybrid Poultry Farm -(2003) ZR,98 Legislation referred to: 1. The Lands and Deeds Registry Act, Chapter 183 of the Laws of Zambia 2. The Subordinate Court Act, Chapter 28 of the Laws of Zambia Rules referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2. The Supreme Court Rules, Chapter 25 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 This is an appeal against the Ruling of A. M Banda­ Bobo, J as she then was, which was delivered on 8th -J 3- 0ctober 2020 in favour of the 2nd and 3rd Respondents, consequently dismissing the Appellant's matter (appeal). 1. 2 In the said Ruling, the learned Judge opined that there was no leave to appeal the decision of the Registrar of Lands and Deeds obtained and as such the matter was incompetently before her. Furthermore, that Kondolo, J as he then was, had directed the Appellant on how to proceed, but the Appellant chose to ignore the directive. 2.0 BACKGROUND 2. 1 This matter has had an elongated legal history. We will from a glean of the four volumes of the record of appeal only capture and restrict ourselves to the background relevant to the appeal herein. 2.2 On 7th November 2000, the 2nd Respondent who was then based in Zimbabwe, gave the Appellant a power of attorney to deal with his properties in Zambia. It was out of the powers conferred therein, that he placed a caveat on stand no. 10494 Lusaka (the Property) on 29th November 2004. It was in that respect as well that the Appellant executed a contract of sale with E. -J 4- Hatembo who paid Kl0,000,000 (unrebased) for the sale of the said Property. 2.3 On 28th June 2005, the 2nd Respondent, who had then offered the Property to M. R. I Mulla on 9th November 2004, commenced proceedings against the Appellant by way of originating summons, for removal of the caveat under cause No. 2005/HP/365. In his Judgment dated 30th March 2006, Simachela, J refused to remove the caveat at that stage, as he was of the view that the contract of sale between the Appellant and Hatembo was complete. The Judge ordered that the Appellant be allowed to complete the transaction and thereafter account to the 2nd Respondent as the principal. That thereafter the power of attorney will stand revoked and the power and all rights will revert to the 2nd Respondent. 2.4 Dissatisfied with the Judgment, the 2nd Respondent, appealed to the Supreme Court on 27th April 2006; which appeal he withdrew on 21st December 2007. On the 6th June 2008, more than two (2) years later, Appellant filed the Simachela J, Judgment at Lands and Deeds Registry for registration. the However, Registrar of Lands on 14th November 2008, cancelled -J 5- the registration on the ground that it had been filed out of time. 2.5 Upon discovering the cancellation, then the Appellant applied for leave to register the Judgment out of time before the Deputy Registrar (DR) of the High Court, pursuant to Section 6 of The Lands and Deeds Registry Act1 , under the same cause number 2005/HP/365. The learned DR in his ruling of 8th February 2010, granted the Appellant liberty to register the Judgment out of time with an extension of 30 days. The 2nd Respondent appealed against this ruling. 2.6 Eventually, J who the appeal was heard by Kondolo, in his ruling of 4th August 2015, in upholding one of the preliminary issues raised by Counsel for the 2nd and 3rd Respondents, held that the Appellant employed an incorrect procedure when commencing the action before the DR and therefore the DR was wanting in jurisdiction, when he heard the applications and his rulings and Orders had no effect. 2.7 Kondolo J, However, notwithstanding the default, granted the Appellant leave to commence a fresh action for registration of the Judgment out of time, -J 6- us1ng the correct procedure, subject to payment of costs in the dismissed matter. 2.8 On 26th April 2016, in total disregard of the ruling by Kondolo J, the Appellant filed into court under cause No. 2016/HP/A21 against the 1st Respondent, an appeal against the decision of The Registrar of Lands, on 14th November 2008, to cancel registration of the Judgment. This was accompanied by an affidavit in support and grounds of appeal. Simultaneously under the same appeal cause number, the Appellant filed an application for leave to register the Simachela, J Judgment out of time. Consequently, Banda-Bobo, J on 2nd June 2016 and 27th July 2016 signed Orders granting leave to the Appellant to register the Judgment out of time. 2. 9 Subsequently the 2nd and 3rd Respondents were joined to these proceedings and on 17th August 2016, there was an application by the 2nd and 3rd Respondents for special leave to review the Orders of Banda-Bobo J. Although there is some disconnect on the record of appeal between this application and the Judgment by Banda-Bobo, J of 8th October 2020, we are of the view -J 7- that it is this application which culminated into the Judgment being impugned. 3.0 DECISION OF THE COURT BELOW 3.1 After giving a background to the matter and analyzing the affidavit evidence, the grounds of appeal and heads of argument, the learned Judge formulated the main issue for determination as "whether the matter was rightly before and competently the court." 3. 2 After considering the provisions of the law, 1n particular Order 47 of The High Court Rules (HCR)1, Order 50 (1) and (2) of The Supreme Court Rules (SCR)2 , Sections 87 and 89 of The Lands and Deeds Registry Act1 and several Supreme Court decisions on the mode of commencement of actions, such as New Plast Industries v The Commissioner of Lands and The Attorney General 1 and BP Zambia Pie v Zambia Competition Commission & 2 Others2 the learned Judge opined that, a party that wishes to appeal out of time, ought to seek leave to appeal out of time. That therefore, the Appellant ought to have applied for leave to appeal within thirty (30) days after the date of the decision. The learned Judge to the noted that, contrary Appellant's assertion that leave was obtained, there -J 8- was no such evidence on record, that an that revealed Order for leave to appeal was granted. 3.3 That furthermore, the Appellant did not comply with the Order by Kondolo, J in which he granted leave to of the commence fresh proceedings for registration Judgment out of time. That there was therefore, by bringing the appeal, an abuse of the court process. 4.0 THE APPEAL 4.1 Dissatisfied with the Judgment, the Appellant appealed to this court advancing four (4) grounds of appeal couched as follows; ( 1) The honourable court below erred both in law and fact when at page J38 paragraph 13.11 of the Judgment held that, from the cited law above the appellant for ought to have applied leave to appeal 30 days after the decision or action appealed against. Contrary to the appellant's assertion that leave was obtained there is no such evidence on record that reveals that an Order for leave to appeal was granted. At J40 paragraph 13.15 of the Judgment the honourable court below went on and held that, the mode of commencement of -J 9- this application was incorrect as leave to appeal was not obtained by failure to take into account that on or about the 2nd day of June 2016 the honourable court below granted leave to the Appellant to appeal out of time. (2) The honourable court below erred both in law and fact when at page J39 paragraph 13.12 of the Judgment held that, it is therefore my finding that leave to appeal was not obtained and that this matter is irregularly before this Court, as it ought to have been commenced by way of a fresh action and not an appeal by failure to take into account that an appeal against the decision of the Registrar of Lands is a fresh action. (3) The honourable court below erred both in law and fact when at page J39 paragraph 13.13 of the Judgment held that, further Section 89 of the Lands and Deeds Registry Act provides a timeline within which one can appeal to the High Court. It is clear that the appellant fell short of the timeline within which to appeal to the extend the time within which to register -J 10- Judgment by failure to take into account that this fresh cause of action is premised on the seeking leave of court to register Judgment under Cause No. 2005/HP/635 out of time. (4) The honourable court below erred both in law and fact when at page J40 paragraphs 13.15 and 13.16 of the Judgment held that, therefore, this appeal is misconceived and is dismissed for lack of merit and the appellant is condemned to costs by failure to take into account that the appellant complied with the procedure to obtain leave to appeal out of time and that this action was not a misconceived one as it was a fresh action. 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 In arguing the appeal, Mr Mwenya, Counsel for the Appellant relied entirely heads of on the Appellant's argument. In arguing the first ground, it was submitted that jurisdiction of the court is cardinal and is required before the court can determine a matter. That an Order for leave to appeal must be obtained in order to clothe the court with jurisdiction to determine -J 11- a matter. Where such leave 1s required and is not obtained, the court has no jurisdiction to hear the matter. Our attention in that respect was drawn to the case of Crossland Mutinta and Bashir Seedat v Donovan Chi panda. 5.2 According to the Appellant, of the where the decision Registrar of Lands is to be challenged, it is a requirement that leave of the court must be obtained before an appeal can be heard. Reliance in that r�spect was placed on Section 89 of The Lands and Deeds Registry Act1 which provides as follows: "In the conduct of appeals from the Registrar to the court, the same rules shall apply as are in force or exist for the time being in respect of ordinary appeals to the court from the subordinate court." 5.3 Reliance was also placed on Section 28 (1) of The Subordinate Court Act2 which provides for leave to be obtained Court to in an appeal from the Subordinate the High Court. It was further submitted that, where an applicant is out of time to do an act, no steps -J 12- should be taken before obtaining leave of the court to do such act out of time. 5.4 According to the Appellant, contrary to the findings of the court that there was no leave obtained to appeal, the Appellant having been out of time to appeal the decision of the Registrar of Lands, applied for leave of the court to have the appeal heard out of time and the court below granted leave to the Appellant to appeal out of time. It was submitted that the court below having granted leave to appeal out of time, as evidenced by the Order at pages 118-119 (Volume 1) of the record of appeal (the record), the court proceeded to grant another Order to the Appellant to register the Judgment out of time as appears at pages 120-121 of the record. 5.5 It was the Appellants submission that there was therefore evidence to show that leave was obtained by the Appellant to have the appeal heard and determined. It was the Appellant's contention that this is a proper case, where this Court ought to interfere with the finding of the court below. -J 13- 5.6 In respect to the second ground, that it was submitted since the court below held that it had no jurisdiction, it should not have made any other decisions on the appeal except for the issue of costs. That the court therefore lacked jurisdiction and should not have proceeded to pronounce itself on the procedure on commencement of proceedings. 5.7 As regards the third ground, it was repeatedly submitted that since, the court below lacked jurisdiction, the court could not determine any issue that was before it. 5.8 In arguing the fourth ground, it was the Appellant's submission that costs are awarded at the discretion of the court. That however, there must be grounds upon which the court must exercise that discretion and judiciously. It was the Appellants that contention having granted leave to the Appellant to have the appeal heard out of time and also to register the Judgment, the court below arrived at a wrong conclusion in the face of the evidence on record. That there was therefore no justification to condemn the -J 14- Appellant's Counsel in the manner the court did for disregard to procedure. 5.9 It was further argued that the court below erred when it awarded costs to the Respondents on the premise that the application was misconceived as leave was never granted. According to the Appellant, the court below wrongfully and unjudicially exercised its discretion, based on the error that the Appellant never obtained leave to appeal out of time. It was the Appellants prayer that the Order for costs be reversed as it was manifest injustice. 6.0 ARGUMENTS IN OPPOSITION BY THE 1 sT RESPONDENT 6.1 The 1st Respondent did not file heads of argument. Although Counsel for the Respondent were before court, they were for that omission not allowed to take part in the appeal. 7.0 ARGUMENTS IN OPPOSITION BY THE 2N° AND 3RD RESPONDENTS 7.1 In response, Mr Hakainsi, co-Counsel for the 2nd and 3rd Respondents also relied entirely on the heads of argument filed into court on 21st July 2021. 7.2 In respect to the first ground, it was submitted that the court below cannot be faulted, as indeed as the court -J 15- correctly observed, the Appellant did not apply for leave to appeal out of time, as they never made any such application. That in any case, leave to appeal is supposed to be made before filing any notice of appeal. That however, the Appellant herein filed the substantive appeal documents for the determination of the appeal at the same time of filing the ill-fated summons for leave to hear the appeal. That the court below was therefore well premised when it dismissed the appeal for lack of leave to appeal. 7.3 In response to the second ground, it was submitted that the Appellant's application in the court below was for registration of the Judgment out of time. The same issue was earlier heard by Kondolo, J who rendered a ruling directing the Appellant to commence a fresh the Appellant action using the correct procedure and did not appeal the said ruling. 7. 4 According to the 2nd and 3rd Respondents, the Appellant made two fundamental mistakes. Firstly, it went against the ruling of Kondolo, J and secondly, the Registrar of Lands has no power to extend time to register documents or to allow registration of documents out of time. It was submitted that the -J 16- power in accordance with section 6 ( 1) of The Lands and Deeds Registry by the Act, can only be exercised High Court. That the alleged appeal was the ref ore ill conceived. 7.5 In response to the third ground, that it was submitted it is paradoxical that the Appellant can claim that the application in the court below was for leave of the court to register the Judgment, whilst appealing against the cancellation of the registration by the Registrar of Lands. According to the 2nd and 3rd Respondents, the explanation given for the delay to register by the the Judgment cannot be entertained Registrar of Lands without a court Order, because he has no powers to authorise or allow registration of a document outside the prescribed period. That it was therefore irregular to ask the Registrar to exercise powers which he does not have. 7.6 As regards that the fourth ground, it was submitted the ground must fail as it lacks merit. That it is trite law that costs are awarded at the discretion of the court. Our attention was drawn to Order 50 / 6 HCR and the case of Costa Tembo v Hybrid Poultry Farm (Z) Limited4 to cement the argument. It was contended -J 17- that the learned Judge was on terra firma, when she condemned the Appellant in costs. 8.0 OUR ANALYSIS AND DECISION 8.1 We have considered the arguments and the records, in particular the Ruling being impugned. We will address the first, second and third grounds together as they are entwined. The issue these grounds raise for determination is whether the learned Judge, in the court below erred in law and fact, in holding that the matter was incompetently before her and as a consequence dismissing it. 8.2 A recap of the evidence shows that the Judgment by Simachela, J delivered on 30th March 2006 was not registered until more than two years later, on 6th June 2008, when the Appellant filed it at Lands and Deeds Registry. Therefore, at the time of registration, the Judgment in accordance with Section 6 of The Lands and Deeds Act1 was void for want of registration. It of was in our view for that reason that the Registrar Lands and Deeds executed his administrative powers to rectify the register 11 ( 1) in accordance with section of the Act by cancelling the registration. -J 18- 8.3 Section 4 of the Act provides for registration of documents. Section 4 / 3 (c) of the Act provides as follows: "Any person aggrieved by an Order of the Registrar under this subsection may appeal to the court which may annul or confirm the Order of the Registrar with or without modification." 8.4 Evidently, the Appellant upon discovering the cancellation, did not appeal the decision of the Registrar. The Appellant instead made an application before the DR under cause number 2005 /HP/ 635, pursuant to Section 6 of the Act. The learned DR on 8th February 2010 granted the Appellant the liberty to register the Judgment out of time on condition that it was registered within thirty (30) days. 8. 5 The ruling by the DR was however set aside by Kondolo, J who opined tha t the Appellant had employed an incorrect procedure when commencing the action, and therefore the DR lacked jurisdiction and the Ruling and Orders by the DR had no effect. Kondolo, J then despite the holding, granted the -J 19- Appellant leave to commence a fresh action for registration out of time, subject to payment of costs. 8.6 Evidently for some unknown reasons, the Appellant decided to ignore the directive by Kondolo, J and decided to appeal the decision by the Registrar of Lands for cancellation of the Register, which cancellation had been done nearly eight (8) years prior to the appeal. 8. 7 The Appellant drew our attention to the two Orders signed by Banda Bobo, J on pages 118 and 120 of the record which was couched as follows: "UPON HEARING Counsel and UPON READING the documents filed in support of the application. IT IS HEREBY ORDERED that LEA VE BE AND IS HEREBY GRANTED to hear the appeal by the Appellant to register the High Court Judgment dated 30th March 2006 under cause number 2005/HP/635 out of time ... " at the Lands and Deeds Registry 8.8 In our view, there is nothing in that Order speaking to granting of leave to the Appellant for leave to appeal and to appeal out of time against the decision of the Registrar of Lands and Deeds. Equally the Order at -J 20- page 120 does not speak to the same as it merely speaks to granting of leave to the Appellant to register the Judgment within (30) days. 8. 9 The confusion which culminated into the s1gn1ng of these Orders as observed by Banda Bobo, J in her introductory remarks, was created by the Appellant filing an appeal against the decision by the Registrar of Lands simultaneously with an application to register the Judgment out of time. The two Orders which were signed by the learned Judge related to the latter application, which was made and Orders granted which under the appeal cause number 2016/HP/A21, cause was before the court without leave of the court. As earlier alluded to under paragraph 2. 9 of our Judgment, this led to the learned Judge's review of the two Orders on the applications made by the 2nd and 3rd Respondents. 8.10 In the view that we have taken, there was no leave granted by the court to appeal the cancellation of the registration of the Judgment by the Registrar of Lands and Deeds. We see no basis on which to fault the learned Judge for the finding that there was no leave obtained to appeal the decision of the Registrar of -J 21- Lands and Deeds and to do so out of time. The three grounds of appeal therefore lack merit and are accordingly dismissed. attacks 8.11 The fourth ground the learned Judge's award of costs to the Respondents mainly on the ground that the Appellant having sought and granted leave by the learned Judge to appeal and to appeal out of time; the learned Judge should not have awarded costs to the Respondents. 8.12 Having dismissed the arguments on grounds one, two and three in respect to the issue of leave, the arguments under this ground become muffled, and the Appellant is therefore deprived The of that argument. general principle that, costs follow the event is applicable herein and it is for the party that was successful, to be paid the costs. 8.13 In the court below, the appeal by the Appellant was dismissed. Therefore, were the Respondents successful. learned In addition, the Judge observed and rightly so, the Appellant's incessant disregard for procedural law, even when directed as to the right procedures. There was indeed as observed by the learned In our Judge an abuse of the court process. -J 22- view, we see no ground on which the learned Judge could have departed from the general principles applicable on award of costs. has This ground equally no merit and is accordingly dismissed. 9.0 CONCLUSION 9. 1 All the four grounds of appeal having been dismissed for lack of merit, the appeal fails and is accordingly dismissed with costs to the 2nd and 3rd Respondents, in this court and the court b ow. The costs are to be J. C SHI COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE A. N. PATEL, SC