Mundengwa Multi-Purpose Co-operative Society Limited v Ronald Somale Hatoongo (Appeal No. 117/2004) [2006] ZMSC 62 (26 May 2006)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 117/2004 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MUNDENGWA MULTI PURPOSE CO-OPERATIVE SOCIETY LIMITED Appellant AND RONALD SOMALE HATOONGO Respondent Coram: Sakata, CJ. Chitengi and Silomba, JJS. On 17th November, 2005 and 26th May, 2006. For the Appellant : Mr. E. B. Mwansa of Messrs EBM Chambers For the Respondent: Mr. M. Malila of Messrs Phoenix Partners JUDGMENT Chitengi, JS, !elivered the judgment of the Court: Cases referred to: - 1. William Jacks and Company V. O'Connor (1967) ZR 109. 2. Krieg and Another V. Christian Council of Zambia (1975) ZR 152. In this judgment we shall refer to the Appellant as the Plaintiff and the Respondent as the Defendant which is what they were , in the High Court. , - J2 - This action arose as a result of the Defendant entering a caveat on a property known as Subdivision C of Farm 1961, Lusaka (hereinafter referred to as the property) on 21 st December, 2000. The Defendant. claimed interest in the property as a beneficiary of the estate of his late father one ~ Michael Hatoongo, who was the joint owner of the entire Farm NO. 1961, Lusaka with his brother one Victor Kanene Chikandi alias Victor Kanene Malambo, now also deceased. According to the Plaintiff, it is the legal registered owner of the property, having acquired it from the'previous owners in 1999 and it exhibited its certificate of title in respect of the property. The Plaintiff said that it has been occupying the property since 1999 anq has developed the property. According to the Plaintiff, the Defendant has no interest in the property but I entered a clveat on the property because· he was denied •· membership of the Plaintiff, which is a cooperative society. The Plaintiff then exhibited letters from the Defendant, the ,. Defendant's brother, one Steven Hatoongo and the Defendant's Q cousin one Lloyd Chikandi applying for membership of the Plaintiff. The Plaintiff wants the caveat removed to enable it use the property as security. The Defendant's position is that his interest in the property , stems from the fact that he is a beneficiary of his late father's estate. He said that the property was jointly owned by his late ' - J3 - father Michael Hatoongo and his brother Victor Kanene Chikandi also known as Victor Kanene Malambo although Victor Kanene Chikandi provided no consideration. The Defendant then exhibited the lease ~greement. The Defendant pointed out that the lease recognized succession to title. The Defendant also deposed that on the death of his father, Victor Kanene Chikandi, also deceased, executed a document at the offices of the Administrator General recognizing the rights of the children of the late Michael Hatoongo to their share to the estate of the late Michael Hatoongo. Subsequent to the execution of the document at the offices of the Administrator-General, the later Victor Kanene Chikandi, who appears to hcJ.ve 'appropriated to himself all the late ., Michael Hatoongo's estate, gave the children of the late Michael Ha{oongo 50% of the estate. But the late Victor Kanene Chikandi did not give the children of the late Michael Hatoongo their share of his interest in the Plaintiff.' The Defendant then gave the history of the property. He deposed that Mudengwa was a UNIP Branch which was on the property as a licensee of his late father. He said that at the time of the death of his late father he and his siblings were minors' and the title of the property vested in his uncle Victor Kanene Chikandi. On the death of Victor Kanene, he and his brother Steven Hatoongo and cousin Lloyd Chikantj.i were 0 - J4 - appointed administrators of the estate of Victor Kanene Chikandi. The Defendant and his siblings were not aware that the Plaintiff had been given the property for which he could get title. Upon inquires, after the _death of Victor Kanene Chikandi, the Defendant learned that Victor Kanene Chikandi ~ had left a Will appointing Mr. Alexander Mweemba, the Chairman of the Plaintiff as his executor. When the Defendant and his siblings sought legal advice in 2000 on the fact that Mr. Mweemba who is the executor of Victor Kanene Chikandi's Will was also running a cooperative on their farm, their advocate advised them to apply {or membership of the cooperative. The Defendant and his siblings then applied for membership of the Plaintiff but todate the Plaintiff has not replied to their applic~tions. :, I Later, the Defendant got information that Mr. Mweemba had given up his executorships but Mr. Mw'bemba did not tell the family of Victor Kanene Chikandi about this. After Mr. Mweemba had renounced his executorships he told the Defendant and his siblings that the title deeds for the Plaintiff were ready. This shocked the Q Defendant and his siblings because they knew of no transaction transferring any portion of Farm No. 1961, Lusaka to the Plaintiffs. He said although Exhibit AHM2 shows Victor Kanene Chik_andi as the donor of the property to the Plaintiff, Victor 'Kanene Chikandi died in October, 1999 before the ownership of the property was changed. According to the Defendant and his siblings, the transaction transferring the - J5 - property to the Plaintiff is fraudulent. It is also alleged that Mr. Mweemba allowed his interest in the Plaintiff to conflict with his interest as executor of the will of Victor Kanene Chikandi. The caveat was entered on property in order to challenge the transfer of the property to the Plaintiff. ~ The Plaintiff swore and filed a detailed Affidavit in Reply; the thrust of which is that the property where the Plaintiff is, was given to the Plaintiff by way of a deed of gift by Victor Kanene Chikandi who after the death of Michael Hatoongo remained the sole owner of the property. It is deposed that Victor Kanene Chikandi made the donation of the land to the Plaintiff before he died. The Plaintiff then listed the improvements made on the pr~perty. ,, On this evi!ence the learned trial Judge · found that the Defendant had established sufficient interest to justify the ,. Defendant to enter the caveat on the property. According to the learned trial Judge, the Defendant was trying to protect Q the interests of the estate of his late father. The learned trial Judge went on to say that the question of ownership or transfer of the piece of land in issue to the Plaintiff would be determined iil other court proceedings. Dissatisfied with the judgment of the court below the Plaintiff , appealed to this court. - J6 - The Plaintiff filed a Memorandum of appeal with three groun<:Is. However, when we considered the grounds of appeal, we were satisfied that in fact the three grounds of ~ appeal are actually one ground of appeal because they talk about the same thing, which is that the learned trial Judge misdirected himself in law and fact when he held that the Defendant had established sufficient interest in the property and refused to remove the caveat. Both counsel filed detailed written heads of argument which they augmented with oral submissions. The sum and substance of Mr. Mwansa's written submissions •· is that the Defendant had no justification to enter a caveat on the property because the Defendant's father having died, • ,, ,, • Victor Kanene Chikandi became the sole owner of farm No. 1961, Lusaka and was entitled to give the property to the Plaintiff. It is Mr. Mwansa's submission that the Defendant's Q interest should be in relation to the estate of his late father concerning the remainder of farm No. 1961, Lusaka and not to the property given to the Plaintiff before the caveat was entered on it, Mr. Mwansa pointed out that the caveat is not on Remaining Extent of Farm 1961, Lusaka but on the property. He said that the caveat is on wrong property. In these circumstances, Mr. Mwansa submitted that the - J7 - Defendant having no interest in the property the learned trial Judge misdirected himself when he found that the Defendant had interest in the property and refused to remove the caveat. Mr. Mwansa's oral submissions are a repeat and an emphasis ~ of his written submissions and it is not necessary to reproduce them. Mr. Malila's written submissions are that the Defendant being the blood child of the late Michael Hatoongo is a person Q entitled to be the beneficiary of the whole Farm No. 1961, Lusaka before the Sub Division. Mr. Malila pointed out that the resolutions of the meeting held at the offices of the Administrator-General on 11th October, 1993 clearly show ,, •• that the late Michael Hatoongo was the owner of the farm and I the late VictJr Kanene Chikandi was merely 'incorporated. It was Mr. Malila's submission that the late Victor Kanene Chikandi signed the resolutions which recognized the rights of ,. the beneficiaries, which -included the - Defendant, in the Q property previously known as Farm No. 1961 Lusaka. Mr. Malila then went into the technicalities of joint and tenants in (, common which in the view we take of this appeal it is not necessary to repeat. Suffice it to say that we have given these . submissions on the concepts of joint and tenants in common , our careful consideration. We only mention here that Mr. Malila pointed out that the right of survivorship is clearly recognized in the lease exhibited; that the Defendant was a person entitled to be a beneficiary before the Sub Division. It was Mr. Malila's submission that in terms of Section 76 of ,, the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia, the Defend§Ult as a person entitled to the property by way of transmission, was at liberty to place a caveat on the property. On the conveyance of the property, Mr. Malila submitted that it was fraught with illegalities and irregularities. Mr. Malila. pointed out that fl. CCording to the evidence on record, Victor Kanene'•' Chikandi died on 13th October 1999, but the co:ri,y~yance was registered on 1st December, 1999, some 42 days later. Mr. Malila also pointed .out that under.,S4(1)- of the Lands and Deeds Registry Act, the conveyance should be registered and that in terms of I Section 9 Jf the Lands and Deeds Registry Act the •· conveyance should be registered within 30 days and that any ... document not so registered is void. In this regard, Mr. Malila also cited the cases of William Jacks and Company V. O'Connor(11 and Krieg and Another V. Christian Council of Zambia/21 which decide that any conveyance which does not comply with the legal requirements is void. Finally,· Mr. Malila submitted that the registration of deed of gift 42 days after the death of late Victor Kanene Chikandi ' meant that the conveyance was void. Further, it was Mr. I / I I - J9 - Malila's submission that a beneficiary's interest cannot be extinguished by technicalities and irregular conduct to which he is not a party. Mr. Malila's oral submissions are the same as his written ~ submissions. We have carefully considered the Affidavit evidence that was before the learned trial Judge, the submissions of counsel and the judgment appealed against. From the current of the submissions and arguments by counsel, we get the impression that the case is being fought on - ,t, the basis whether the Plaintiff is the rightful owner of the property or not. We have not been asked to rule on the issue of ownershiJ. What we have been asked to rule upon in this appeal is whether the facts of this case establish that the Defendant had sufficient interest justifying him to enter a caveat on the property. Taking and considering all the evidence together we cannot say that the issue of the Defendant's interest in the property started in 2000 when the Defendant entered a caveat on the property. As Mr. Malila rightly pointed out, the interest of the Defendant and his siblings in the entire Farm 1961, Lusaka, ' started in the early 90's, if not before, and before the ,, ' 0 -JlO- subdivisions. Clearly, there was a dispute between the late Victor Kanene Chikandi and the Defendant and the other children of the late Michael Hatoongo over the estate of the late Michael Hatoongo. It is clear to us that when the Defendant and his siblings got older, they realized that Victor ~ Kanene Chikandi was out to disposes them completely. Hence, the matter going to the Administrator General; the inspection of the property and the meeting at which the late Victor Kanene Chikandi was made to recognize the interests of the Defendant and his siblings. Both Mr. Mwansa and Mr. Malila raised good arguments on the issues relating to the grant of the property by the late Victor Kanene Chikandi. However, in the view we take of this •· :, I appeal, we do not intend to discuss these arguments. We are satisfied thJt on the facts of this case,· the Defendant established sufficient interest to justify him to enter a caveat on the property pending his proposed action to ch~J.lenge the grant of the property to the Plaintiff. It is for this reason that Q we feel constrained not to discuss most of the arguments and submissions which touch on the issues whether the grant of the property to the Defendant was valid or void. To do so, would pre-empt a possible trial at which issue relating to the validity or non-validity of the grant will be fully dealt with and argued. -Jll - For the reasons we have given, we find no merit in this appeal and we affirm the judgment of the court below. This appeal is accordingly dismissed with costs to the Defendant to be taxed in default of agreement . 0 .................. ~ ................. .-. ... . E. L. SAKALA CHIEF JUSTICE ••........•••.....•••. E HITENGI I/ SUPREME COURT JUDGE ·············· .................................... . S. S. SILOMBA SUPREME COURT JUDGE