Ntombie Zibwele Siwale v Registrar or Lands and Deeds and Ors (Appeal 133 of 2012) [2018] ZMSC 399 (15 January 2018)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF: SS. 11(1) AND 3 AND Appeal No. 133/2012 SCZ/8/208/2012 COW OFzXwa^s. IN THE MATTER OF: Fraudulent and KyrgStfS appellant and James k fraudulent certificate of title"in favour of the between Janga Chungu AND the the 2nd respondent AND IN THE MATTER OF: BETWEEN: Fraudulent irregular advertisement leading to wrongful marking-off of stand No. 108A, Kabulonga in Lusaka NTOMBIE ZIBWELE SIWALE (As Administrator of the Estate of the late ZOLA CHEYO JEREMIAH SIWALE) APPELLANT AND THE REGISTRAR OF LANDS AND DEEDS 1st RESPONDENT JAMES KASANGA CHUNGU LUCY SUBI NAMUYAMBA 2nd RESPONDENT 3RD RESPONDENT BJORN VON HOFSTEN THIRD PARTY CORAM: Mwanamwambwa DCJ, Muyovwe and Kaoma, JJS On 14th July, 2015 and 12th January 2018 For the Appellant: For the 1st Respondent: For the 2nd Respondent: Mr. H. Silweya of Messrs. Silweya and Company Mrs. M. M. Kawimbe - Deputy Chief State Advocate, and Mr. M. D. Bowa -State Advocate, of the Attorney General's Chambers Mr. A. Tembo of Messrs. Tembo Ngulube and Associates For the 3rd Respondent: Mr. C. P. Chula of Messrs. Chibesakunda and Court. Legislation Referred to: (1) Sections 11 (1) (2) and 87 of the Lands and Deeds Registry Act Chapter 187 of the Laws of Zambia (2) Orders 6 (2), 39(1) of the High Court Rules, Chapter 27 of the Laws of Zambia (3) Section 4 of the High Court Act Chapter 27 of the Laws of Zambia Cases Referred to: 1. B. P. Zambia Pic v Interiand Motors Limited (2001) ZR 37 2. Development Bank of Zambia and KMPG Marwick v Sunvest Limited and Sun Pharmaceuticals Limited (1995/1997) ZR 187 3. Zambia Breweries v Central and Provincial Agencies (1983) ZR 152 4. Kelvin Hang’andu and Company v Webby Mulubisha (2008) ZR 32 5. John Chisata v Attorney-General (1990/1992) ZR 15 6. Hu He Rong v Charity Oporaocha Appeal No. 111/2000 7. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 8. Attorney General and Speaker of the National Assembly v The People (1999) ZR186 9. John Mugala and Kenneth Kabenga v The Attorney General (1988/1989) ZR171 Works Referred to: 1. Order 18/19/18 of the Rules of the Supreme Court, 1999 Edition. J2 This appeal is against an order of the High Court that this matter should be continued as if it was commenced by writ of summons, on the grounds that the originating summons raises contentious issues that cannot be disposed of in chambers. We wish to indicate at the outset that this case is marred with confusion. Regrettably, the lawyers and the Judges who handled it are all to blame for the mess. It will become apparent in the course of our Judgment that the matter ought not to have come this far. At the hearing of this appeal on 14th July 2015, the 3rd party, Bjorn Von Hofsten, raised an objection that this appeal is an abuse of the court process and it should accordingly be dismissed. The 3rd party claimed that he was the beneficial owner of Stand No. 108A, Kudu road, Kabulonga, Lusaka, the property in dispute. That there was an earlier action the 3rd party commenced against the appellant under Cause No. 2003/HP/0704, which was decided in his favour by Kabalata J. He stated that Kabalata J ordered specific performance of a contract between him and the appellant, for the sale of Stands No. 108A and 108, Kudu road, Kabulonga. J3 On his behalf, Mr. Mubanga submitted that his client’s objection arose out of his interest in Stands No. 108A and 108 Kabulonga, Lusaka, being the legal and beneficial owner of the said properties. He argued that this action was an abuse of the court process because the appellant commenced the matter and excluded the 3rd party, when there was an earlier Judgment against him by Kabalata J and he had not complied with it. Counsel submitted that his client had to apply to join these proceedings. To support his submission that this action is an abuse of the court process, Mr. Mubanga cited the following authorities: 1. Order 18/19/18 of the Rules of the Supreme Court. 1999 Edition. 2. B. P. Zambia Pic, v Interiand Motors Limited(1) 3. Development Bank of Zambia and KMPG Marwick v Sunvest Limited and Sun Pharmaceuticals Limited(2) 4. Zambia Breweries v Central and Provincial Aqencies(3) 5. Kelvin Hang’andu and Company v Webby Mulubisha(4) It was his submission that in the above authorities, multiplicity of actions between the same parties over the same issues had been met with disapproval by this Court. He argued that the appellant commenced this action over Stand No. 108 Kudu road, Kabulonga, Lusaka, despite the earlier Judgment against him over the same property. He argued that if this appeal was allowed J4 to proceed, it is likely to conflict with the Judgment in the earlier matter. It was his argument that the administration of justice will be brought into disrepute if the parties obtain conflicting decisions. The preliminary objection was opposed by Counsel for the appellant. On his behalf, Mr. Silweya submitted that the property which was subject of the earlier action was different from the property which is subject of this action. He argued that the appellant excluded the 3rd party in this action because the 3rd party has no interest in the subdivision which is subject of this action. On behalf of the 1st respondent, Mrs. Kawimbe and Mr. Bowa did not object to the preliminary objection. But Mr. Tembo, acting on behalf of the 2nd respondent, opposed the preliminary objection. He argued that in the earlier action before Kabalata J, the only parties were the 3rd party and the appellant whereas in this matter, there are five parties. He submitted that the respondents were not party to the earlier action and they did not even know that the matter existed. He argued that J5 the interest of his client in Stand No. 108A Kudu road, Kabulonga was registered two years before the 3rd party commenced the earlier action which was before Kabalata J in 2003. To support this argument, he stated that his client’s Certificate of Title was dated 15th May 2001. He argued that this matter cannot be dismissed by mere reference to the Judgment of Kabalata J. Mr. Chula on behalf of the 3rd respondent also opposed the preliminary objection. He submitted that his client was not opposed to the dismissal of the appellant’s appeal. That what his client was opposed to was the attempt by the 3rd party to prejudice the rights of the 3rd respondent to be heard in this matter. He argued that it was evident that the 3rd party was not only seeking the dismissal of the appellant’s appeal, but was also securing the enforcement of Kabalata J’s Judgment by compelling the transfer of Stand No. 108A, Kudu road, Kabulonga, to himself. He argued that the enforcement of the Judgment would perpetrate an injustice against the 3rd respondent. J6 Counsel pointed out that the print out from the Lands Register on record showed that the appellant registered the assignment between himself and the 2nd respondent on 15th May 2001. That thereafter, a Certificate of Title was issued to the 2nd respondent. He stated that approximately two years after the transfer to the 2nd respondent, the 3rd party’s Advocates on 19th June 2003, entered a caveat on the property as intending purchaser. His argument was that at this stage, the 3rd party was put on notice that Stand No. 108A, Kudu road, Kabulonga was in the name of the 2nd respondent, and not the appellant. That despite being aware that the appellant was not the registered owner, the 3rd party commenced the earlier action against the appellant and not the title holder. Counsel submitted that the Judgment of Kabalata J, envisaged the problem that the 3rd party is currently facing and it provided for a situation where, if for one reason or another the appellant was unable to perform his part of the contract, the 3rd party would be refunded all the money he had expended to purchase the property. Counsel argued that the correct remedy for the 3rd party would be to seek a refund since the property had J7 already been sold to the 2nd respondent and the 3rd party had notice of this fact. We considered the issues raised in the 3rd party’s preliminary objection. Our immediate ruling when we heard the objection was that we would determine it together with our Judgment in the main appeal. This we now do. It is common cause that the subject matter of the earlier action in Cause No. 2003/HP/0704 before Kabalata J was Stand No. 108, Kudu road in Kabulonga, Lusaka. It is also common cause that this is the same property or at least its subdivision, which is subject of the present matter. As rightly observed by Mr. Tembo, the respondents were not party to the earlier proceedings before Kabalata J, despite the fact that the 2nd and 3rd respondents are equally claiming to have some interest in the property in dispute. The parties in the earlier matter before Kabalata J, were only the appellant and the 3rd party. In effect, Kabalata J’s judgment only determined the rights of the 3rd party as against the J8 appellant in relation to Stand No. 108, Kudu road, Kabulonga, Lusaka. Clearly, the rights of the respondents in relation to the property in dispute were not determined. Neither were the rights of the appellant as against the respondents determined. In our considered view, this shows that there is still some controversy surrounding the ownership of Stand No. 108, Kudu road, Kabulonga, Lusaka. This controversy cannot go unresolved. It should be determined. Therefore, this matter cannot be dismissed without hearing it on the merits. As we said in John Chisata v Attorney-General(5): “...cases should wherever possible, and where there is no prejudice to either party by some irregularity, be allowed to come to trial so that the issues may properly be resolved. Interlocutory orders which prevent this should be avoided.” In this case, we take the view that the 3rd party will not suffer any prejudice if this matter is heard on the merits. We think that it is in the interest of justice that all issues in controversy should be determined with finality. No doors should be left open for further litigation over the same property between the same parties. In our view, finality will only be achieved if the rights of all the parties in J9 this case are determined. As we have already noted, the rights of the respondents were never determined because they were not parties to the earlier action. We would have agreed with Mr. Mubanga’s argument that this matter is an abuse of the process, if the respondents were parties to the earlier proceedings. For the foregoing reasons, we find no merit in the 3rd respondent’s preliminary objection. We hereby dismiss it, for lack of merit. We shall now turn to the main appeal. Brief facts are that on 17th September 2009, the appellant took out an Originating Summons against the 1st, 2nd and 3rd respondents. He claimed to be owner of Stand No. 108, Kudu road, Kabulonga, which he said he had subdivided into two portions, namely Stands N0. IO8/RE and 108A. He testified that he had agreed to sell Stand N0. IO8/RE Kudu road, Kabulonga, to the 3rd party and as a result, Kabalata J ordered specific performance of the said contract because the 3rd party had paid for the property. j 10 It was his evidence that the 2nd respondent had earlier shown interest in Stand No. 108A Kudu Road, Kabulonga, but did not pay for it. He alleged that the 2nd respondent fraudulently assigned the property to himself; forged the appellant's signature on the assignment and lodged it at the Lands and Deeds Registry. The appellant further alleged that in collusion with the 1st respondent, the 2nd respondent was corruptly, wrongfully, irregularly and fraudulently issued with an original certificate of title for Stand No. 108A. That the 1st respondent erroneously transferred to the 2nd respondent the portion of land which was sold to the 3rd party. He stated that he only came to learn of these events, and that the 2nd respondent had sold Stand No. 108A to the 3rd respondent, when he conducted a search at the Lands and Deeds Registry. According to the endorsement on his originating summons, the appellant was claiming to be:- (1) The registered owner of the parent Stand No. 108, Kudu road, Kabulonga, whose Certificate of Title was wrongfully, irregularly and fraudulently withheld by the 1st respondent in collusion with the 2nd respondent in a forged assignment registered on 15th May, 2001, after a fake application for a duplicate Certificate of Title of a lost Certificate when in fact not; (2) Entitled to the reliefs provided for in S.(1) and 33 of Cap 185 affecting Stand No. 108A, Kabulonga currently registered in the name of the 3rd respondent, Lucy Subi Namuyamba; JU (3) An order for an Injunction against the 3rd respondent from further assignment and development of Stand No. 108A; (4) The determination of the following questions:- (a) Whether or not the assignment dated and registered on the 15th May, 2001, made between the appellant and 2nd respondent was forged; (b) Whether or not the 2nd respondent paid to the appellant the consideration (if any) for the parent property or at all; (c) Whether or not the 1st respondent was in order to release to the 2nd respondent or retain the appellant’s Certificate of Title relating to the parent property No. 108, Kudu road, in Kabulonga, Lusaka; (d) Whether or not the 2nd respondent had legitimately acquired the parent property being Stand No. 108, Kudu road, Kabulonga, Lusaka; (e) Whether or not the 2nd respondent had any property to sell and transmit to the 3rd respondent regard being had of the frauds, wrongfulness and forgery contrary to ss. 11 (1) and 33 of Cap 185 and contrary to the principle of “NEMO DAT QUOD NON HABET”; (f) Whether or not the offending 1st and 2nd respondents can be made to compensate in kind the appellant’s lost Stand No. 108A, Kudu road in Kabulonga, Lusaka; (g) Whether or not it is proper to restrain by an order of Injunction the 3rd respondent to further develop or further assign Stand No. 108A, Kudu road in Kabulonga, Lusaka until conclusion of this matter by the Court. These allegations were denied by the 2nd respondent. His evidence was that he bought subdivision A of Stand No. 108, Kabulonga, for a consideration of K10, 000,000, old currency. That he was issued with a Certificate of Title No LI 1511 on 15th May, 2001. That the 2nd respondent and the appellant used the same Advocates, Messrs Ysakar Legal Practitioners, and both duly signed J12 the contract of sale and the assignment in the presence of their lawyers. Before the matter could take off in the Court below, the 2nd respondent raised an objection on a point of law. At that time, the matter was before Sikazwe J. The ground of objection was whether it was legally proper and tenable for the appellant to commence proceedings by way of originating summons instead of the procedure under section 87 of the Lands and Deeds Registry Act. The objection was opposed by the appellant who argued that the action originated from the 1st respondent’s failure to rectify and reverse entries on the registry and it was brought under Section 11 of the Lands and Deeds Registry Act, which requires a party aggrieved by an entry or omission to apply to the Court for an order of rectification. In his Ruling of 18th January 2010, Sikazwe J, ruled that since the 1st respondent went ahead to release title deeds for Stand No. 108A to the 2nd respondent and never corrected the errors as pointed out by the appellant, the action was in conformity with J13 Section 11 (2) of the Lands and Deeds Registry Act. He dismissed the preliminary objection on grounds that the appellant wanted the 1st respondent to be ordered to rectify the register and therefore the proceedings were properly commenced by originating summons in accordance with Order 6 rule 2 of the High Court Rules and Section 11 (2) of the Lands and Deeds Registry Act. The matter was later re-allocated to Sharpe-Phiri J. When it came up before her on 27th March 2012, Counsel for the 3rd respondent sought guidance on whether it was proper for the Court to proceed to determine the matter based on affidavit evidence, in view of the serious allegations of fraud which were made by the appellant. In response, Counsel for the appellant indicated that proving fraud was impossible as the appellant had passed away and in so far as Counsel was concerned, the documents were adequate and oral evidence was not necessary. Sharpe-Phiri J ruled that she would permit the appellant’s affidavit evidence since the action was commenced by originating summons and the appellant’s advocate had submitted that his J14 client did not intend to give oral evidence. She accordingly ordered the counsel for the parties to file their submissions. On 6th June 2012, Sharpe-Phiri J scheduled a hearing. However, only counsel for the appellant turned up for that hearing. The trial Judge informed Counsel that she had scheduled the hearing after receiving submissions and affidavits, in order to discuss the way forward with the parties in view of the contentious issues that had been raised. She stated she had now taken the view that the matter could not be disposed of in chambers. She accordingly ordered that the matter should be continued as if it was commenced by writ pursuant to Order 28 rule 8 of the White Book. She further ordered that the affidavits on record would stand as pleadings and the parties would be at liberty to file a fresh statement of claim and defences, if any. She also ordered for a fresh Order for directions. The appellant was not happy with the Order of Sharpe-Phiri J. He appealed to this Court advancing three grounds of appeal. These read as follows:- J15 1. That the learned trial Judge erred and misdirected herself at both law and in fact and failed to deliver Judgment as scheduled after receiving submissions from the parties as ordered by herself on an earlier order by herself and by the Hon. Justice E. M. Sikazwe to proceed and conclude by affidavit evidence in this action pursuant to the Originating Summons on record; 2. That the learned Judge in the Court below erred at law in disregarding the principles of “functus officio” and “subjudice” by revisiting her own and the ruling of Mr. Justice E. M. Sikazwe of similar jurisdiction; 3. That the learned Judge in the Court below erred in law by permitting parties to make pleadings and adduce evidence on facts which clearly arose after the commencement of the action knowing well that the appellant had passed away could not respond to the new and created facts to prosecute the action prejudiced by the “fresh evidence”. Based on these grounds of appeal, the appellant and the respondents filed written heads of argument. However, the 3rd party declined to make arguments in the main appeal. Mr. Mubanga on his behalf indicated that his client was not in a position to respond to the issues raised in the appeal because doing so would amount to acquiescing to the appeal and would also amount to a waiver of the irregularity that had been raised in the 3rd party’s preliminary objection. For convenience’s sake, we shall address all the three grounds of appeal together. J16 On ground one, Mr. Silweya submitted that this action was commenced as an application under Section 11(1) (2) of Lands and Deeds Registry Act and the appellant had simply followed the procedure laid down in that provision by commencing his action by originating summons. He stated this mode of commencement was in fact approved by Sikazwe J and was equally followed by Sharpe- Phiri J, when Counsel had informed her about the demise of the appellant. He argued that Sharpe-Phiri J’s order for fresh pleadings and evidence was a travesty of justice. He stated that additional oral evidence if required would have been called without the new order for directions. He submitted that Sharpe-Phiri J’s order delayed the conclusion of the action and at the end of the day, trial cannot be conducted since the appellant died. He urged as to conclude the action on the basis of the affidavit evidence. On behalf of the 1st respondent, Mrs Kawimbe and Mr. Bowa opposed ground one. They submitted that the record shows that Sharpe-Phiri J only agreed to the appellant’s evidence being tendered in the form of affidavits because the appellant had died. They argued that there was nowhere on record where the Judge J17 said that Judgment would be rendered based on affidavit evidence. They submitted that Sharpe-Phiri J was not precluded from making the order directing that the proceedings should continue as though they had been commenced by Writ. Counsel referred us to Order 28 rule 8 of the Rules of the Supreme Court and submitted that the order gives the Court power to deem proceedings commenced by originating summons as though they had begun by writ. They argued that what prompted Sharpe-Phiri J to issue a fresh order in the manner she did was that there were contentious issues that were raised, pertaining to fraud. On behalf of the 2nd respondent, Mr. Tembo argued grounds one and three together. In so doing, he referred us to Order 28 rule 8 of the Supreme Court Rules. He submitted that it is trite law that matters that are not contentious and can be disposed of in Chambers can be commenced by originating summons. He submitted that there are instances where a matter may initially not seem contentious but it is subsequently discovered that it is actually contentious. He stated that when that happens, Order 28 rule 8 of the Supreme Court Rules gives the Court discretion to J18 treat a matter initially commenced by originating summons, as if it was commenced by writ and it is immaterial at what stage the Court decides to make the order. He submitted that the appellant had alleged fraud on the part of the 2nd and 3rd respondents. He also pointed out that the originating summons disclosed contentious issues on how the alleged fraud would be proved. He argued that it would be a miscarriage of justice if this matter proceeds on affidavit evidence without allowing the 2nd respondent to call witnesses or to test the veracity of the appellant’s evidence. On behalf of the 3rd respondent, Mr. Chula equally opposed ground one. He submitted that Sharpe-Phiri J had the right to make an order that the matter be heard by way of viva voce evidence. He argued that affidavit evidence alone cannot carry the weight that can be attached to viva voce evidence. He submitted that the reason affidavit evidence lacks cogency is because the witness is not subjected to the rigors of cross examination, where the veracity of his evidence is tested. In support of his submission, Counsel referred us to the case of Hu He Rong v Charity Oporaocha<6). He submitted that Sharpe-Phiri J acted within the J19 scope of her powers and her position was fortified by her reliance on Order 28 rule 8 of the Rules of the Supreme Court. He argued that a Judge has complete discretion, at any stage in the proceedings, to treat the matter as having been begun by Writ. He argued that the ruling of Sikazwe J dealt with the mode of commencement and it did not oust the jurisdiction of Sharpe-Phiri J to treat the proceedings as having been begun by writ. He argued that the appellant’s argument that a trial cannot be conducted because the appellant died is wholly untenable at law because his personal representative could testify on his behalf. On ground two, Mr. Silweya argued that there was no good cause or reason for Sharpe-Phiri J to revise both the ruling of Sikazwe J and her earlier order in which she ordered that the matter should proceed by way of affidavit evidence. Ground two was countered by Mrs. Kawimbe and Mr. Bowa on behalf of the 1st respondent. They essentially repeated their arguments in ground one and supported the decision of the Court below. Their argument was that Sharpe-Phiri J was on firm ground J20 based on the principle in Wilson Masauso Zulu v Avondale Housing Project Limited(7) that the Court has a duty to deal with every aspect of a matter before it with finality, and also based on Order 28 rule 8 of the Rules of the Supreme Court. They further contended that under Order 39 rule 1 of the High Court Rules, a Judge can review his decision and the trial Judge did not err at law when she revisited her ruling and that of Sikazwe J. Mr. Tembo on behalf of the 2nd respondent also countered ground two. He equally referred to Order 39 rule 1 of the High Court Rules, and submitted that this provision gives the Court discretion to review and vary its own decision in the interest of justice. He argued that the trial Judge was on firm ground when she re-visited her own ruling. On behalf of the 3rd respondent, Mr. Chula opposed ground two. He submitted that ground two is a misrepresentation of the facts as they existed at the time of the decision of Sikazwe J. He contended that Sharpe-Phiri J was not functus officio but was ensuring that the ends of justice are achieved through a full J21 hearing. He argued that the conduct of Sharpe-Phiri J cannot be deemed to be sub judice because it pertained to the same proceedings and not proceedings that were before another Court. On ground three, Mr. Silweya submitted that the Court below ignored the already established facts by affidavit evidence in preference to the evidence which was created after the matter was already in Court, such as the issuance of a Certificate of Title to the 3rd respondent against the rules of sub-judice. In response to ground three, Mrs. Kawimbe and Mr. Bowa, on behalf of the 1st respondent, submitted that what the appellant was referring to as fresh evidence under this ground was based on the guidance which was sought by the 3rd respondent’s advocates. They contended that there is nothing that stops a concerned party from seeking the Court’s guidance on a certain issue which has the potential of affecting the outcome of a matter. They submitted that the issue of proving fraud was raised as a concern and the Court accordingly guided the parties. They argued that it was immaterial at what stage the trial Judge made her order because Order 28 rule J22 8 Rules the Supreme Court allows the Court to use its powers at any stage of the proceedings. Mr. Chula on behalf of the 3rd respondent opposed ground three. He pointed out that this ground misrepresents the facts relating to the affidavit evidence in this matter. According to counsel, the documents clearly show that there had been no "creation of evidence”. He argued that the Certificate of title in the name of the 3rd respondent is dated 3rd November 2008, and there were no proceedings commenced against the 3rd respondent prior to that date. He submitted that this action was only commenced in September 2009. That the issuance of title could not be deemed to be sub judice as there were no proceedings pending determination at the time the 3rd respondent obtained her Certificate of title. We have considered the issues raised in this appeal. It is clear to us that the issue in dispute is whether it was competent for Sharpe-Phiri J, to order that this matter should be continued as if it was commenced by writ. As we have already mentioned, this case J23 is marred by some confusion which was created by the lawyers and the Judges who handled it. To start with, it is very clear from the issues raised that this case is highly contentious and as such, it should have been commenced by writ of summons. We say this because the appellant has made serious allegations against the respondents. He alleges that the 2nd respondent forged his signature and fraudulently assigned the property in dispute to himself. He further alleges that the 2nd respondent, in collusion with the 1st respondent, was corruptly, wrongfully, irregularly and fraudulently issued with the Certificate of Title to the property. The endorsement on his originating summons clearly demonstrates how contentious this matter is. We must make it plain that in cases that are highly contentious such as this one, where serious allegations of fraud, forgery, corruption and collusion are made, the standard practice and procedure is that the matter should be commenced by writ of summons, and not by originating summons. It is improper to J24 commence a highly contentious case by originating summons. The reason for this is that matters commenced by originating summons are usually determined based on affidavit evidence. When using this procedure, the veracity of the evidence is not tested through cross-examination of witnesses and the Court has no opportunity to observe the demeanour of witnesses. In view of the fact that this case is highly contentious, it was wrong for the appellant to commence it by originating summons. When a preliminary objection was raised regarding the mode of commencement, Sikazwe J was the one who should have ordered for the matter to be continued as if it was commenced by writ in accordance with Order 28 rule 8 of the Rules of the Supreme Court. This Order provides that: “28/8 8.-(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.” Sikazwe J misdirected himself, when he ruled that the matter was properly commenced. While we agree with him that a party J25 seeking an order to compel the 1st respondent to rectify the lands register can make an application under Section 11 (2) of the Lands and Deeds Registry Act, we are of the firm view that this procedure cannot be invoked in matters that are highly contentious, and in particular, alleging fraud. Notwithstanding that Sikazwe J’s decision was wrong, the decision was still binding since it was not challenged by way of an appeal. For this reason, Sharpe-Phiri J should not have made an order which had an effect of overruling the decision of Sikazwe J because Judges of the High Court exercise equal jurisdiction. Section 4 of the High Court Act gives equal power, authority and jurisdiction to Judges of the High Court in Zambia. It provides that: “Subject to any express statutory provision to the contrary, all the Judges shall have and may exercise, in all respects, equal power, authority and jurisdiction, and, subject as aforesaid, any Judge may exercise all or any part of the jurisdiction by this Act or otherwise vested in the Court, and, for such purpose, shall be and form a Court.” Further, in the case of Attorney General and Speaker of the National Assembly v The People(8), we held that; “...it is beyond our comprehension that here a Judge of the High Court can be heard to overrule or otherwise interfere with a judgment of another High Court Judge.” J26 Therefore, a High Court Judge should follow the decision of another Judge of the High Court on the same rate without stating what his own view would have been on the matter. The name of Court would be put into disrepute, and it would be a mockery of justice, if a Judge interferes or comments on the decision of another Judge of equal jurisdiction on the same case pertaining to the same issues and facts. We therefore have no doubt that Sharpe-Phiri J was wrong to issue an order on a matter which was already decided by Sikazwe J, even though it was a wrong decision. We further wish to observe that Sharpe-Phiri J’s order in fact went against her earlier decision of 27th March 2012, in which she permitted the appellant to adduce affidavit evidence on the basis that the matter had been commenced by originating summons. We take the view that it was a misdirection on her part to change her mind in the manner she did. This is because there is no indication that she changed her mind in exercise of her powers of review under Order 39 rule 1 of the High Court Rules. And if at all she was exercising her powers of review, she ought to have given the parties or their advocates an opportunity to address her on that J27 issue before making her order. In the past, we have repeatedly indicated that it is undesirable for a Court to make a decision without hearing the parties. In John Mugala and Kenneth Kabenga v The Attorney General(9) we stated as follows:- “We have not, of course, lost sight of the fact that the ruling here was volunteered by the court and did follow upon any submission by the defence; but the point is whether it was competent for the learned trial judge, even of his own motion, to make such a ruling. We do not doubt that it was competent but hasten to point out that it is most undesirable for a trial judge to volunteer such a ruling, especially without even affording the parties advance notice of what the judge has in mind and giving them the opportunity to address him. We suggest that it is better to adhere to the practice of making a ruling only when the defence makes a submission and even then the Judge should be slow to make a decision on the evidence before he has heard it all.” It is clear from the foregoing that there were so many lapses in the manner this case was handled. The advocates in fact compounded the problem. We wish to remind advocates that they are officers of the Court and as such they have a duty to assist the Court in managing and deciding cases through their submissions. In this case, the advocates abdicated their responsibility to assist the Court. One glaring lapse which is attributable to the advocates is that the appellant died in the course of the proceedings on 18th J28 November 2010, but he is still appearing on the record as appellant. An application was granted to substitute him with the administrator of his estate, Ntombie Zibwele Siwale, but he is erroneously still appearing on the record. It took the court to correct this. This kind of recklessness cannot be condoned by this Court. In the circumstances, we hereby direct the counsel for the parties to ensure that all the subsequent Court documents in this matter are in the names of the administrator of the estate. For the reasons we have already given, we hereby send this matter back to the High Court so that it can be continued as if it was commenced by writ. This will be in the interest of justice. This appeal has no merit. We hereby dismiss it. We award costs to the 1st, 2nd, 3rd, Respondents and the 3rd party, to be taxed in default of agreement. M. S MWANAMWAMBWA DEPUTY CHIEF JUSTICE J29 E. N. C MUYOVWE SUPREME COURT JUDGE R. M. C KAOMA SUPREME COURT JUDGE J30