Linyati v Hope Foundation for Children and Women (Appeal 171 of 2006) [2008] ZMSC 126 (21 May 2008)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 171/2006 HOLDEN AT LUSAKA (CIVIL JURISDICTION) MUNALULA LINY ATI APPELLANT AND HOPE FOUNDATION FOR CHILDREN AND WOMEN RESPONDENT CORAM: Sakala, CJ., Chitengi and Silomba, JJS 23rd October, 2007 and 21st May, 2008 For the Appellant: Mr. C. L. Mundia SC., of Messrs. C. L. For the Respondent: N/A Mundia and Company JUDGMENT Sakala, CJ., delivered the Judgment of the Court. Case referred to: 1. Nyambe Mukelabai Vs Gunther Widmaier SCZ Appeal No. 116 of 1999. When we heard this appeal, we announced our decision, allowing the appeal. We set aside the Short Ruling of the I 1 ' ' 2 Appellate Judge dated 29th June 2006 and ordered that the matter goes back to the High Court at Lusaka to be heard before a different Judge. We also ordered that costs abide the outcome of the re-hearing of the appeal against the order of the Subordinate Court. We indicated then that we shall give our reasons later in a written Judgment. We now give those reasons. Before we give our reasons, we must mention that we heard this appeal in the absence of the Respondent and their Advocate upon being satisfied by Mr. C. L. Mundia, SC., Advocate appearing for the Appellant, that the Respondent and their Advocate were aware of the hearing date. We were also informed by the Master, who had actually driven to the Offices of the Advocates for the Respondent, when the matter was stood down, that counsel for the Respondent was aware of the hearing date. This is an appeal against a Short Ruling of the High Court dated 29th June, 2006, refusing the Application for Review of its earlier Ruling dated 5th June 2006. This was infact supposed to be a simple case which, however, followed a very strange path involving several parties and Courts, but relating to the same property. According to the record, the matter was in the High Court under Cause No. 2000/HP/2/0263 before the Hon. Mr. Justice T. K. Ndhlovu. The parties were Sepiso Simonda (then suing as Administrator of the Estate of the late Simonwa Simonda) Vs Golden Mandandi (sued in his personal capacity as Minister of Works and Supply) and the Attorney-General. On 28th November, 2003, the Hon. Mr. Justice T. K. Ndhlovu, after adjourning the matter for several times, at the instance of the Defendants, entered Judgment in favour of the Plaintiff in the absence of the Defendants. Part of that Judgment read as follows:- “This is a matter that was commenced in 2000 and this court being one of Law and Equity, I am left with no option but to enter Judgment in favour of the Plaintiff" as follows: (a) The Housing Committee is hereby directed to sell the said house No. 7 Andrew Mwenya Road and in accordance with the guidelines set out in Circular No. 12 of 1996 on the sale of houses to Civil Servants. (b) The Defendant to pay damages to the Plaintiff for anguish, depression, trespass and harassment to him and his family by the Defendant’s agents and/or servants and the said damages to be assessed by the Deputy Registrar. (c) Interest on the awarded damages at short term deposit rates to the date of Judgment and thereafter at current bank lending rates to the date of payment or settlement and costs to be agreed or taxed in default of Judgment. DATED at Lusaka this 28th day of November, 2003.” Despite the existence of the Judgment of 28th November, 2003, for unexplained reasons, on 28th Februaiy 2006, the Respondent in the present appeal, commenced an action in the Subordinate Court as Applicant, by way of an Originating Notice of Motion, against the present Appellant as Respondent. The Motion was couched as follows:- “THE HOPE FOUNDATION FOR WOMEN AND CHILDREN APPLICANT AND MUNALULA LINYATI RESPONDENT ORIGINATING NOTICE OF MOTION TAKE NOTICE that the Subordinate Court of the First Class sitting at Lusaka before the Magistrate Mr R. Choonga Esq in Chambers will be moved on November the 6th Day of March 2006 at 14.00 hours in the Afternoon as so soon thereafter as the applicant may be heard for the following orders or relief. That the Plaintiff do recover from the Respondent vacant possession of Plot No. 4607 Andrew Mwenya Road. That the Plaintiff be at liberty to issue Warrant of Distress. THAT THE Plaintiff recover possession of the House known as Plot 4607 Lusaka and evict the Respondent there from. DATED AT LUSAKA THIS.... DAY OF............... 2006” It must be pointed out that Plot No. 4607 is also known as house No. 7 Andrew Mwenya Road, Rhodes Park, Lusaka. The Motion was supported by an affidavit. Paragraphs 4 - to 9 of the affidavit in support read as follows “4. That the Respondent has illegally been occupying the applicants property known as plot 4607, Andrew Mwenya Road Rhodes Park Lusaka for a period of well over three years without paying any rent. 5. That the Applicant has on several occasions advised and demanded the Respondent to give vacant possession of the property but all the request have yielded no results. 6. That on about 2nd November 2004 the Applicant advised and intimated to the Respondent to yield vacant possession of the house but the Respondent did not heed to the notice and request. Produced and marked “JI 1 ” copy of letter. 7. That further to the aforesaid the Respondent having not responded positively to the request for him to vacate the house did on the 11th May 2005 give the Respondent a period of six months notice in which to vacate the property, which the Respondent has again ignored and neglected to honour. Produced and attached marked “J12” copy of the letter. 8. That the Respondent is adamant into vacating the premises despite several reminders and notices served on him and besides staying in the house without paying any rental. 9. That the Applicant having given the Respondent the necessary notices and the same having been ignored and neglected has no option but crave the indulgence of this court to grant an order for vacant possession and evict him from the property.99 On the same date of 28th February 2006, the Respondent/Applicant in the Subordinate Court, applied by Exparte Summons for Leave to Issue a Warrant of Distress and Writ of Possession and Eviction. This application was also supported by an affidavit, which for purposes of the present appeal is not relevant to recite. On 10th March, 2006, the Subordinate Court granted an Order for leave to issue Writ of Possession and Eviction. The order stated as follows:- “ORDER FOR LEAVE TO ISSUE WRIT OF POSSESSION AND EVICTION UPON READING the affidavit of JOSEPHY INGWE filed in support of the application herein on behalf of the applicant. IT IS HEREBY ORDERED that the applicant be granted Leave to Issue Writ of Possession and Eviction of the Respondent from the property known as plot 4607 Andrew Mwenya Road Rhodes Park Lusaka.” On 17th March, 2006, the Appellant in the present appeal, obtained in the Subordinate Court an order staying the Writ of Possession. Subsequently, the Appellant applied in the Subordinate Court to set aside the Originating Notice of Motion for irregularity. The application was supported by an affidavit. Paragraphs 4-8 of that affidavit in support stated as folio ws:- "4. That I am the Administrator of the estate of the late in this matter in Simonwa Simonda who was my young brother and passed away on 8th July, 1998. 5. That I commenced process in the High Court of Zambia against the Government of the Republic of Zambia as my late brother was entitled to buy house No. 7 Andrew Mwenya Road, Rhodes Park Lusaka where he resided until his death and as the government through the Housing Committee did not make a decision in time process was commenced in the High Court and Judgment was obtained, a copy which is now before this Court. 6. That the Attorney-General appealed to the Supreme Court against that Judgment but I am informed by my Advocates that the application for Leave to File Record out of Time was dismissed on 14th March, 2006 with costs to the Defendant for want of prosecution. 7. That Hope Foundation for Women and Children irregularity commenced the action before this Court which action has the effect of setting aside the Judgment of the High Court and therefore process should be declared by this Court null and void. 8. That if the Court was informed by Hope Foundation for Women and Children that there was process in the High Court and Judgment was granted, the Court could not have entertained this application, 15. That the deceased had been the occupant of the house under reference and never received any document or correspondence from Hope Foundation Limited and the circumstances under which the said Hope Foundation purported to purchase the said property are unexplainable because neither Mrs. Vera Chiluba nor any of the officials of Hope Foundation Limited has ever occupied this house and never been sitting tenants. 16. That I have also learnt that the said Hope Foundation Limited is purported to have sold the said property to VDF Property Management Limited. 17. That produced and marked SS 1-11 are Photostat copies of the proceedings in the Subordinate Court and Judgment of the High Court. 18. That the Appellant was wrongly cited as a party to these proceedings as he occupied the servant’s quarters of my house, purely as a relative but without interest or propriety right in the said property. 19. That in fact at the time of the purported acquisition by Hope Foundation Limited, my late brother was still alive as he died on 8th July, 1998 having occupied that house from 14th April, 1994.” Other applications followed, but for purposes of the present appeal, suffice it to point out that on 5th May, 2006, the High Court ordered that the Appellant should obtain leave to appeal against the Magistrates Order prior to the hearing of the Appeal. The Appellant, however, instead of obtaining leave from the Subordinate Court as ordered by the High Court, applied to the High Court for Special Leave to appeal to the High Court against the Order of the Subordinate Court. The application was supported by an affidavit. Paras 5-8 of that affidavit read as follows:- “5 That this Hon. Court ordered that the Appellant apply for special leave from the Court below to appeal against the orders of the Court which granted possession and refused to grant stay of execution of the writ. 6. That the Hon. R. Choonga refused to allow counsel to be heard in the Chambers on the account that the Court had already refused the application in its ruling dated the 11th May, 2006 which had been delivered on the 5th May, 2006 as marked in exhibit GGXL 1. 7. That if the Appellant wanted to appeal for Stay pending appeal in the High Court, he should give security for costs. 8. That under the premises the Appellant is applying for leave to appeal to the High Court.” There was also an affidavit in opposition to the summons for Special Leave to appeal against the Order of the Subordinate Court. Paragraphs 4 to 9 of that affidavit reads “4. That first and foremost the Appellants application for Special Leave to Appeal is misconceived and improperly before the Court. 5. That further the Order of the Court dated 12th May 2006 Ordered the Appellant to obtain Leave to Appeal from the Court below prior to the hearing of the Appeal, however as indicated in paragraph. 6 of the ~ affidavit in support of the application for Special Leave to Appeal, the application for leave to appeal was never made nor heard by the Court below. 6. That therefore as the Appellant did not make the application for Leave to appeal to the Court below, the Court has had no opportunity to deny or grant the said Leave to Appeal. 7. That it is evident from paragraph 7 of the aforesaid affidavit in support of the application herein, that the Court below informed the Appellant of the condition to provide security for costs before the Court granted Final Leave to Appeal. 8. That it is also evident from paragraph 8 of the aforesaid affidavit in support of the application herein that the Appellant DOES NOT have any intention whatsoever of meeting any of the prescribed conditions for lodging an appeal, especially that of GIVING SECURITY FOR COSTS. 9. That further and in any event the Appellant is Out of Time to apply for Leave to Appeal against any of the Court*s Orders and therefore an application for Leave to Appeal Out of Time should have been made in the Court below.” In his Ruling dated 5th June, 2006, the Learned trial Judge pointed out that on 5th May, 2006 he had ordered that before hearing the Appeal, the Appellant’s learned counsel ought to obtain leave to appeal from the Subordinate Court. The trial Judge noted that the application had been made before the Subordinate Court but was not heard compelling relying on purported procedural defaults, the fact denied, the Court has on its record evidence to show that the Proceedings before the Subordinate Court were null and void ab initio as the Subordinate Court has no power to hear and determine a matter that was already tried by the High Court and Judgment delivered involving the same property. 6. That further the action was commenced by an Organisation that had no locus standi in the matter and it is therefore regrettable that the Respondents seem to cherish defects in its action when it has not come before this Court with clean hands. 7. That produced and marked exhibit CLM1 is a Photostat copy of the Certificate of Title in the name of Hope Foundation Limited. 8. That it has been the Appellant’s case that the eviction could not be carried out under an order commenced by the Respondent and at the same time being occupied by VDF Property Management Limited which has never been a party to the proceedings and therefore having no locus standi in the matter. 9. That clearly the interest of Justice militate that the Appellant be allowed to file the appeal before this Court rather than relying on purported technicalities by the Respondent when its hands have been tainted with irregularities ab initio. 10. That in the premise the Court is prayed to review its Ruling herein referred to as Justice has been done by the Court below.” There was also an affidavit in opposition to the Summons for Review. Paragraphs 5-8 of that affidavit stated as follows:- “5. That I verily believe that the Affidavit in Support of the Appellant’s Application for Review of the Judgment dated 5th June 2006, DOES NOT disclose any new or fresh evidence, which would have a material effect upon the decision of the Court or to in fact warrant the Court to exercise its power to review. 6. That furthermore the affidavit DOES NOT show any grounds upon which the Court may be compelled to review its earlier Judgment. 7. That in any event the aforesaid Court’s Ruling is very specific and abundantly clear in respect of the procedure to be adopted by the Appellant prior to the appeal being heard by this Honourable Court. 8. That despite the Ruling of the Court directing that the Appellant follow the prescribed procedure for appeals from the Subordinate Court, the Appellant has once again opted to adopt other measures to ensure the appeal being heard avoiding compliance with rules of procedure. The trial Judge considered the affidavit evidence and arguments for and against the application for Review of its Ruling of 5th June, 2006. On 29th June, 2006, the Court delivered a short Ruling couched as follows “There is force in the contention by the Appellant, but there is no basis for review as that would mean disregarding the procedure which applies when matters come by way of appeal. I thus decline the application for review. LEAVE TO APPEAL granted. NM. Mwanza Judge 29/06/2005” The Appellant appealed against the foregoing Ruling. The appeal was based on two grounds; namely: “That the trial Judge erred in law and in fact by holding that the application to review was one without merit and dismissed with costs when in fact the proceedings in the Subordinate Court subject of the appeal to the High Court were a complete nullity for lack of jurisdiction by the Subordinate Court; and that the trial Judge erred in law and in fact by entertaining objections from the Respondent when in fact the Respondent had no locus standi in the property namely Stand No. 4607, Andrew Mwenya Road, Rhodes Park, Lusaka and could not therefore pass good title to the 3rd party. ” Mr. Mundia, SC., on behalf of the Appellant, filed written heads of argument based on the two grounds. The gist of the written heads of argument on ground one is that the Appellants’ argument both in the Subordinate Court and the High Court has been that the commencement of the action by the Respondent by way of Originating Notice of Motion filed on 28th February, 2006, supported by an affidavit, Exparte Summons for Leave to issue Warrant of Distress and Writ of Possession and Eviction and the purported Order of Eviction, all filed on the same 28th February 2006, were a complete nullity as at the material time, there was already a Judgment of the High Court sealed on 28th November, 2003 in respect of the same property; and that the Court below was asked to review its earlier RuEng dated 5th June, 2006, which Ruling did not address the issue of the nullity of the proceedings before the Subordinate Court. It was pointed out that the High Court noted the predicament that the Appellant had in the Subordinate Court to the extent that it decided on an Exparte appEcation to repossess the property the subject of these proceedings as well as the issuance of the Warrant of Distress and Eviction of the appellant, who was only staying in the Servant’s quarters and a wrong party for that matter; and that had the Court addressed itself properly to the issues, it would have not dismissed the application for Review. It was submitted that even the Stay of Execution that was granted by the Principal Resident Magistrate was set aside by the trial Magistrate without good cause; and that failure by the High Court to review its Judgment after having overlooked serious legal issues of the Subordinate Court’s jurisdiction and that the matter had already been tried, made a review necessary. Order 39(1) of the High Court Rules on Review of Judgments by the High Court was cited in support of the arguments. It was further submitted that the High Court failed to take into account the serious issues raised in the It was finally prayed on ground one that the Court’s failure to review its earlier order when there were serious legal issues involved; but not taken into account in its Ruling necessitated a review’; and the order of review ought to have been granted. The summary of the written heads of argument on ground two is that the action was commenced by Hope Foundation for Women and Children and yet, the property in issue is in the name of Hope Foundation Limited. It was submitted that Hope Foundation Limited is a legal person, totally distinct from Hope Foundation for Women and Children. It was submitted that the Respondent had no Locus Standi. The case of Nyambe Mukelabai Vs Gunther Widmaier1 where it was held that “once the Defendant is adjudged (as happened here) not to be occupying the Plaintiffs land, the Plaintiff hardly has locus standi to complain about land that is not his” was cited in support of the submissions. In the brief oral submissions on both grounds, Mr. Mundia, SC., on behalf of the Appellant, pointed out that what is strange in the whole of this case is that the trial Magistrate signed the order of possession on 4th March, 2006 before the purported Originating Notice of Motion was heard and which the very matters which will have to be decided at the re­ hearing. However, we are compelled to observe that the proceedings before the trial Magistrate raised more issues than meets the eye and raise a lot of suspicion. Indeed, the proceedings before the trial Magistrate were a comedy of errors. Regrettably, the Appellate High Court Judge never appreciated the issues involved in the matter. The case raised serious issues which neither the Magistrate, if he had jurisdiction, nor the High Court Judge pronounced upon. It is for the foregoing reasons that we allowed the appeal. We set aside the Ruling of the Appellate Judge and send the matter back to the High Court for rehearing before a different Judge. It is our hope that all the issues highlighted and in dispute will be pronounced upon. E. L. Sakala CHIEF JUSTICE SUPREME COURT JUDGE rmc S. S. Silomba SUPREME COURT JUDGE