Odile Luokombo 'Chelemu' v Chana Chelemu (Suing as Beneficiary, Administratrix and Personal Representative of the Estate of late Weddie Chemlesya Chelemu) and Ors (APPEAL NO. 294/2021) [2023] ZMCA 402 (29 April 2023)

. ' IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: R ODILE LUOKOMBO 'CHELE AND APPEAL NO. 294/2021 CHANA CHELEMU (Suing as Ben eficiary, Administra trix and Personal Represen tative of the Es ta te of the la te Weddie Ch emlesya 1 ST RESPONDENT Ch elemu) MARGARET CHELEMU (Suing as Ben eficiary, Adminis tratrix and Personal Representative of the Est ate of the late Weddie Ch emlesya 2ND RESPONDENT Ch elemu) CAROLINE CHELEMU (Suing as Beneficiary, Adminis tratrix and Person al Represen tative of the Estate of the la te Weddie Ch emlesya Chelemu) 3RD RESPONDENT CORAM: Siavwapa, JP, Chashi, and Banda-Bobo, JJA On 21s t February, 2023 and 26th April, 2023. For the Appellant: Mr. F. E. Mulenga Junior of Messrs August Hill and Associates For the Res pondent: N / A JUDGMENT Banda-Bobo, JA delivered the Judgment of the Court. J1 Cases referred to:- 5 . Leta n g v. Cop per ( 1965) 1 QB 1. 2 . Willia m Da vid Ca rlis le Wise v. E . F. Harvey Limited 1995 ZR 179 Swindell and Others v. Bulkeley a nd Other s (1886) 18 Q. B. D 250 3. Peter Nzooma Luma nyenda a nd Another v. Chief Chamuka (1 9 89 ) ZR 4. 19 4 Kenny Phiri v. Yusuf Anthony Fila mba (SCZ Appeal No. 6 1 of 2 01 3) (unrep orted) Peter David Lloyd v. J. R. Textiles (SCZ Appeal No. 137 /2011) Rod gers Kasoma v. Attorney Gen era l (2010) Vol. 3 ZR 143 Colburn v. Colledge(l897) IQB, 702 , CA9. Nicholas Longworth v. J a m es M. Hunt a nd Oth ers (1 966) 2 2 QBD 128 6 . 7. 8 . 9 . Legislation and Materials • Rules of th e Suprem e Court (RSC) of Engla nd, 1999 Edition • The High Court Act, Cap 27 of the Laws of Zambia • The Limita tion Act , 1939 • The Proper ty Tra nsfer Tax, Chapter 346 of th e Laws of Zambia, • The La nds a nd Deed s Registry Act • Frederick S . Mudenda - La nd Law in Za mbia: Cases a nd Materia ls, Lus aka, Unza Pres s, 2 007 • Halsbury's Laws of Engla nd, 3rd Edition Vol. 3 0 • Black 's Law Diction ary (8th Edition, Thom s on West Publis h ers, Lon d on , 1656). 1.0 Introduction 1.0 This is an appeal against the Ruling of Hon. Mrs. Justice Kaunda Newa, delivered in Chambers on 8 t h September, 2021 in the High Court for Zambia. 2 . 0 Background 2 . 1 Briefly , the background to the appeal is that the respondents herein, commenced an action against the appellant in the J2 I • court below on 22nd June, 2020 by way of writ of summons and statement of claim. They claimed the following reliefs:- (i) That the purported deed of transfer of Plot 29 J esmondine, Lusaka, from W eddie Chelemsya Chelemu to the defendant which was registered on 22nd November, 2004, be declared null and void; (ii) That the certificate of title No. 33429 for plot No. 29 Jesmondine , Lusaka which was issued to the defendant be cancelled; (iii) That plot No. 29, Jesmondine, Lusaka be reverted to Weddie Chilemsya Chelemu as represented by the administrators of the estate, the plaintiffs herein; (iv) That the defendant vacates and gives up vacant possession of plot No. 29, Jesmondine, Lusaka, to the Administrators as personal representatives of the estate of the late Weddie Chelemsya Chelemu; (v) That pending determination of this matter, the defendant be restrained by interlocutory injunction from disposing of, or encumbering, or in any way dealing with plot No. 29, Jesmondine, Lusaka; J3 (vi) That the defendant be accountable and pay mesne profits for occupation of Plot No . 29, Jesmondine, Lusaka and the rent received from 15th May, 2012 to the date of g1v1ng up possess10n; (vii) Further or other relief as the court claims fit; (viii) Costs. 2.3 The appellant settled appearance and defence, in which she denied the respondents' claims, claiming in the main that she was bequeathed the property by deed of transfer executed by the deceased on 22 nd November, 2004 as a gift because she was the deceased's wife at the time. 3. 0 The Preliminary Issue 3.1 On 23rd June, 2021, the defendant filed an application to raise a preliminary issue on points of law pursuant to Order 14A as read together with Order 33 rule 3 of the Rules of the Supreme Court (RSC) of England, 1999 Edition 1 and Section 13 of the High Court Act, Cap 27 of the Laws of Zambia2 . The issues raised for determination were: - J4 (i) Whether the plaintiff's action, challenging the conveyance of Plot No. 29, Jesmondine , Lusaka, to the defendant on or about the 22n d day of November, 2004 is statute barred, in view of the fact that the said action has been commenced more than twelve ( 12) years after the said Plot No. 29 Jesmondine , Lusaka, was conveyed to the defendant, in terms of Section 4(3) and Section 15 of the Limitation Act3; (ii) And if the said question be answered in the affirmative, then the defendant humbly prays tha t the plaintiffs' action be dismissed with costs to be paid to the defendant to be taxed in default of agreement, for setting up a statute barred cause of action. 4. 0 Decision of the Lower Court 4.1 After considering the affidavit evidence and the arguments by each party, the court below identified the issue for determination as being whether the action was statute barred, which question impacted on the jurisdiction of the court. In JS her final determination, the learned Judge found that the action was not statute barred. 5.0 The Appeal 5.1 Dissatisfied with the Ruling, the appellant has assailed it and has advanced two grounds of appeal before this Court, vis:- (i) That the lower court erred in fact and law, when it held that the limitation period on a cause of action relating to a deceased's landed property begins to run on the date on which the deceased dies; (ii) That the lower court erred in law and fact when it held that the applicable limitation period for an action for recovery of land would not apply in a situation where a party wishing to plead the statute of limitation to defeat a cause of action relating to landed property is not in adverse possession of that property. 6 .0 Hearing 6.1 At the hearing, only counsel for the appellant was present. However, the respondent had filed their heads of argument. That being the case, we proceeded to hear the appeal. J6 Counsel for the appellant, Mr. Mulenga Junior, relied on the appellant's heads of argument, which he augmented with brief oral submissions. 7.0 Arguments in Support of the Appeal Both grounds were argued together. It was argued that the Ruling, the subject of the appeal seems to suggest that the respondent's cause of action, in respect to the appellant's landed property only began to run on the death of the deceased. It was argued that this was a wrong finding, because a cause of action is based on a set of facts that give rise to some form of liability upon which a person can bring an action against another. To augment, our attention was drawn to the case of Letang v. Copper1 for the definition of a cause of action, namely that it is:- "Simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person"; which definition was cited with approval in the case of William David Carlisle Wise v. E. F. Harvey2 Limited where the Supreme Court said:- J7 "A cause of action is disclosed only when a factual situation is alleged which contains facts upon which a party can attach liability to the other or upon which he can establish a right or entitlement to a judgment in his favour against the other" 7. 1 It was argued that in this matter, the cause of action arose when the deceased transferred the property to the appellant in November, 2004. That, that is when a factual situation arose and which gave the deceased the right to challenge the transfer at anytime prior to his death. That, if as alleged by the plaintiff, the appellant had influenced the deceased due to his condition, the deceased h ad eight years to challenge the validity of the transfer and p lead, among others non est factum. Th at, therefore, the personal representatives had until 21 st November, 2016 to bring the action competently, because after that, the statute of limitation had kicked in and the cause of action was extinguished for being statute barred. 7. 2 In arguin g further , the appellant reasoned that the personal representatives are but an extension of th e deceased himself. That therefore in the absen ce of fraud, mistake or impropriety, the acts of the deceased cannot be set aside. That the net J8 effect is that the established limitation period kicks in, and actions which are stale cannot be entertained by courts. 7.3 In support, reference was made to Section 15 of the Limitation Act3 which provides that:- "For purposes of the prov1s1ons of this Act, relating to actions for the recovery of land, and advowsons, an administrator of the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration" (emphasis supplied) 7. 4 Further reliance was placed on the works of the authors of Halsbury's Laws of England, 3 rd Edition Vol. 307 , paragraph 1011, where it is stated that:- "Where a cause of action has accrued to a person during his life, time continues to run under the limitation Act, 1939, notwithstanding his death, and it runs continuously even though there is an interval is before a grant of probate or administration obtained." 7.5 It was submitted that Section 4(3) of the Limitation Act3 , provides for limitation periods of actions founded on recovery of land. That in such cases, the limitation period is 12 years. J9 7.6 As regards guidance on limitations of actions by personal representatives, we were referred to the case of Swindell and Others v. Bulkeley and Others3 where it was held that:- " ... But here the death of the defendant did not abate the action. It continued alive subject to this that some step must be taken to put someone else on the record in lieu of the deceased. An executor is not entitled to time in which to bring an action where the testator might have brought one any time up to his death, expires afterwards: Rhodes v. Smethurst (3); Penny v. Brice (4); because no action has been lost by reason of the death. If any right of action is lost in such case the loss is due to the want of diligence of the testator, and not to time running against a person who can do nothing to prevent it, according to the expression used in Sturgis v. Darell ... " the period of limitation and 7. 7 Moving on, the appellant submitted on the issue of adverse possession, contending that the same was inapplicable to this case. That it was therefore a misdirection by the Judge in applying it to the facts of this case. That Section 10 of the Limitation Act3 only applies to actions brought by a possessor of land, inconsistent with the right of the true owner. In support, Section 35 of the Lands and Deeds Registry Act5 was adverted to; as well as the works of Frederick S. Mudenda - Land Law in Zambia: Cases and Materials6 , ori the same issue JlO of adverse possession; and for the proposition that adverse possession cannot apply in Zambia once the land has become the subject of the certificate of title or provisional certificate of title. Further recourse was had to the cases of Peter Nzooma Lumanyenda and Another v. Chief Chamuka4, Kenny Phiri v. Yusuf Anthony Filamba5 and Peter David Lloyd v. J. R. Textiles6 . 7.8 It was submitted that it was clear from the foregoing authorities that adverse possession applies to a situation where the possessor of land acquires by holding the land without right for a period of twelve years. That the net effect is that the true owner of the property is therefore stopped from claiming the land due to the restrictions under the limitation of actions. That however, this only applies in cases where the true owner has no tittle to the land in dispute. That this is a defence to a claim by the true owner of land. That such owner cannot re-claim the land based on the fact that their claim has become stale. 7.9 It was contended that this principle does not apply in this case, and the court ought not to have brought it in, as neither Jll of the parties have held the property in contention in adverse possession. That the appellant has had title to the property since 2004 when it was conveyed to her. That infact, no allegation of adverse· possession was made in the proceedings and even if it had been made, the same would not apply as the property in question is on title to the appellant, and any claim in terms of the Limitation Act3 on the basis of adverse possession would be ill fated given the position of the law. 7 .10 It was submitted that the facts in this case are distinguishable from the cases above and the case relied on by the court below. That in casu, the court below was moved and asked to pronounce itself on the propriety of the present action in light of Section 4(3) as read with Section 15 of the Limitation Act3 , which prov1s1ons seek to determine whether personal representatives can bring an action on behalf of a deceased person twelve years after the deceased's cause of action arose. That the rationale is that personal representatives are merely stepping in the shoes of the deceased and enjoying rights · which he himself would have been entitled to had he been Jl2 alive, as espoused by the authors of Halsbury's Laws of England7 , that:- "Where a cause of action has accrued to a person during his life, time continues to run under the Limitation Act, 1939, notwithstanding his death, and it runs continuously even though there is an interval is before a grant of probate or administration obtained." 7 .11 It was argued that given the position above, the only basis for the court to have found that the statute had not run was if she had found that there was either fraud or mistake. That in her Ruling the court clearly found as a matter of fact that there was neither fraud nor mistake when she stated that:- "However, there is no pleading in the statement of claim alleging the said mistake specifically, as required by law. Further the fact of mistake, being that the defendant was a spouse of the deceased when the deed of transfer was executed, has no consequence of the transaction not being eligible for nil tax consideration, but does not invalidate the transaction as can be seen from the case of Mutemwa Mutemwa SC and Others v. New Future Financial Services Limited and Another relied on by the defendant ... " With regard to the question of mistake, this is a relief that has not been pleaded, and therefore, I will not make any directions in that regard." Jl3 7.12 Based on the above, we were urged to find merit 1n both grounds and that the appeal should succeed. 8.0 Arguments in Opposition of the Appeal 8.1 The respondents filed their arguments in opposition on 20th January, 2023. 8.2 They maintained their argument that the cause of action only arose when the illegalities tainting the transfer of Plot 29, Jesmondine, came to be known by the respondents. That paragraph 8.30 of the Ruling should not be looked at in isolation when understanding the context in which the lower court labored to justify that the action before it was not statute barred. That, that is why the lower court pronounced itself that the cause of action based on mistake arose at the date of judgment as it was at that time that a set of facts to which liability could attach on the issue arose. That the lower court relied on the Rodgers Kasoma v. Attorney General7 case where the law espouses that an application for extension of time to file an application outside the limitation period has to be made in . cases where a plaintiff alleges fraudulent J14 concealment, fraud, or disability among others. That however in this matter, the mistake was only discovered on 28th February, 2020 when the High Court delivered the judgment. That according to Section 26 of the Limitation Act3 , the period of limitation could only begin to run after the discovery of the fraud or mistake. It was the respondent's submission that the lower court was on firm footing when it ruled that the action commenced on 22 nd June, 2020 and was not statute barred; as according to them, the cause of action only arose after the court annulled the marriage on 28th February, 2020 of the appellant and the deceased. That, that is when the illegalities tainting the transfer of Plot 29, Jesmondine from the deceased to the appellant on 22nd November, 2004 was discovered. That as a consequence, all transfers made in relation to the said property prior to the annulment of the marriage between the appellant and the deceased are null and void. 8.3 As regards the period within which a claim for the recovery of land can be brought, reliance was placed on Section 4(3) of the Limitation Act 19393 , particularly on the exceptions thereof. JlS Of relevance, reliance was placed on the Notes to Section 4 of the Act, which stipulates that:- "No action shall be brought by any person to recover land after the expiration of twelve years from the date on which the right accrued to him, or if it first accrued to some person through whom he claims to that person" It was submitted that the notes guide further, that:- "the periods of limitation specified in this part are subject to the provisions of Part II of this Act, which in terms of provide disability, acknowledgment, part payment, fraud or " . t k mis a e ... for an extension of time 8.4 Further, Section 26 (c), Part II of the Act was also set out which provides that:- "where in the case for any action for which a period of limitation is prescribed by this Act, where ... (c) The action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable due diligence have discovered it" as well as the case of Colburn v. Colledge8 where the court stated that:- "lf the plaintiff alleges facts which if not traversed would prima facie entitle him to recover, then he makes out a cause of action" J16 8. 5 We were also ref erred to the case of Letang v . Cooper1 on the definition of a cause of action. It was submitted that it was imperative to determine the point at which a cause of action accrues, namely, whether it is at the point when the wrong is committed or when it is discovered. 8.6 In support, we were referred to the case of Nicholas Longworth v. James M. Hunt and Others9 , where the court held that:- "In a proceeding in equity for relief on the ground of fraud, the lapse of time applied in equity in analogy to the statute of limitations, begins to run from the time of the discovery of the fraud. " 8. 7 It was reiterated that in casu, the illegalities and mistake were only discovered after the judgment of the High Court that annulled the marriage between the appellant and the deceased. Further, that the respondents did not know of the transfer of the subject property until 2018 , after being appointed as administrators. That consequently, the limitation period only started when the fraud , mistake or illegality was discovered by the respondents . That this ground lacks merit. J17 . . 8.8 Submitting on ground two , the respondents agreed with the court below on the holding that the appellant, as the registered owner of the land, could not be said to be in adverse possession of the land in contention. It was also contended that the appellant had misconstrued this ground. 8.9 It was argued that the court took this position from the fact that the appellant had averred that she owned the property, as brought to the attention of the court. That the court had to acknowledge the r espondent's position that the deceased was not in a frame of mind to have executed the d eed of transfer in 2004 and transferring the property to the appellant. Further that the appellant was not legally married to the deceased , and that at that time, she was not a Zambian resident and thus ineligible. 8.10 It was argued that the only way the limitation period could run in favour of the appellant, was if she was in adverse possession; as per the case of Peter David Lloyd v. J. R. Textiles6 • We were also referred to Blacks Law Dictionary (8 th Edition, Thomson West Publishers, London, 1656)8 , on this issue. We were urged to dismiss the appeal in its entirety. J18 9. 0 Analysis and Decision 9. 1 We have carefully considered the impugned Ruling, grounds of appeal and the arguments by the appellant in support of the appeal, as well as the arguments in opposition. 9.2 In her Ruling, the learned Judge identified the issue for determination as being whether the action was statute barred, which went to jurisdiction . We note from the outset that the respondents in their affidavit in opposition contended that the now appellant was not eligible for nil consideration bequeathal of the pr oper ty as she was not a spouse or child of the deceased as p er the court judgment of 28th February, 2020 in Cause No. 2017 /HPF / 0028. 9.3 Black's Law Dictionary, Tenth Edition, defines bequeath as:- "To officially arrange for someone to have (something that one owns) after one's death esp - to give property, (usually personal property or money) by Will. To assign or transfer real or personal property by formal declaration, either inter vivos or after death." 9.4 We note t h at the appellant was bequeathed or gifted inter vivas. Having been bequeathed with the property, the issue to resolve is whether the deceased in 2004 had no mental J19 capacity as alleged to consciously gift or bequeath the property to the appellant. This is in view of the fact that the said bequeathal took place in 2004, and the certificate of title was duly issued to the appellant on 22nd November, 2004. In their statement of claim, the respondents, as appear at page 12 of the record of appeal, at line 16, allege that in 1994, the late W eddie Chelemsya Chelemu suffered a stroke and when he returned home , the appellant was his caregiver and was dependent on her. That in 2006, he suffered yet another stroke, which left him paralyzed and led to his demise on 15th May, 2012. Further, at page 14 of the record of appeal, line 13 to 15, the respondents alleged that the deceased did not bequeath the Plot No. 29 Jesmondine to the defendant for nil consideration and that if he did, he did so unconsciously, due to ill health and the manipulation for personal benefit by the appellant. The issue of him bequeathing the property to the appellant unconsciously due to ill health only arose after his demise. In their affidavit in opposition, they did not specify what kind of mental incapacity the deceased had. The appellant is on record stating that after suffering the first J20 stroke, the deceased recovered within a year and was able to work at his companies. That he only suffered a second stroke in 2006. We find that it was not an issue in 2004 when he bequeathed or gifted her the property, as there is no evidence that he was mentally incapacitated at the time. 9.5 The respondents alleged that there was a mistake, which mistake was that the appellant was a spouse to the deceased and which mistake was only brought to the fore when the judgment of 28th February, 2020 was delivered. In her ruling on this issue as appears at page 38 of the record of appeal, the learned Judge stated that the mistake with regard to the deceased having allegedly transferred Plot 29, Jesmondine to the appellant on the basis of her having been his wife was only discovered on 28th February, 2020 when the High Court delivered judgment. That this would extend time for filing process based on the alleged mistake if an application is made. 9.6 However and contrary to the respondents ' assertions, the learned Judge went on to hold, and rightly so in our view, that there was no pleading in the statement of claim alleging the J21 . " • said mistake specifically as required by law. Order 18/8/2 of the Rules of the Supreme Court1 is pertinent on this issue, where it is stated that:- "Para. ( 1) Wherever a party has a special ground of defence or raises an affirmative case to destroy a claim or defence, as the case may be, he must specifically plead the matter on which he relies for such purpose. "The effect of the Rule is, for reasons of practice and justice and convenience, to require the party to tell his opponent what he is coming to the court to prove" (per Buckley L. J. in Re Robinson's Settlement, Grant v. Hobbs (1912) 1 Ch. 717 at 728): but the Rule does not prevent the court from giving effect in proper cases to defences which are not pleaded ibid. and see Price v. Richardson (1927) 1 K. B. 448 at 453". 9.7 In our view, the Judge was on firm footing when she said that the fact of mistake , being that the defendant was a spouse of the deceased when the deed of transfer was executed , has the consequence of rendering the transaction not eligible for nil tax, consideration but did not invalidate the transaction. The Court further stated that:- "with regard to the question of mistake, this relief is a relief that has not been pleaded and therefore I will not make any directions in that regard" In our view, the learned Judge was on firm ground in holding as she did. J22 " . ,J I 9.8 We note at page 38, line 25 of the record of appeal, that the learned Judge indicated that the issue as to what property the deceased left, and which formed part of his estate became a cause of action when the deceased died on 15th May, 2012. We are of the view that this was a misdirection. We say so because the property was already on title to the appellant herein and therefore, it could not have formed part of the estate of the deceased. We premise our view on Section 33 of the Lands and Deeds Registry Act, Cap. 1855 which is clear on the import of a certificate of title to land, unless challenged in accordance with Sections 33, 34 and 35 of the said Act. 9.9 The appellant contended that the cause of action accrued in 2004 when she was gifted the said land. She placed reliance on Section 4(3) of the Limitation Act, 19393 ; which is to the effect that no action can be brought by any person to recover land after the expiration of twelve years from the date on which the right of action accrued to him. The authorities of Swindell and Others v. Bulkeley and Others3 and Halsbury's Laws of England7 are clear that where a cause of action has accrued to a person during his life, time continues to run, J23 " . ,, I notwithstanding his death. Further that the death does not abate the action. · It was in the Swindell4 case where it was held that:- "... An executor is not entitled to time in which to bring an action where the testator might have brought one any time up to his death and period of limitation expires afterwards ... because no action has been lost by reason of the death ... " 9.10 We agree with the appellant that the respondents, being personal representatives of the deceased, were caught up 1n Section 4(3) of the Limitation Act3 , as they were not entitled to time in which to bring an action where the deceased himself might have brought one any time up to his death. 9.11 The next contention by the appellant regards the Court's finding that since the appellant did not hold the property by adverse possession, it meant that the cause of action accrued when the deceased died on 15th May, 2012. 9.12 In the case of Peter David Lloyd v. J. R. Textiles6 it was held inter alia that:- " ... However, by Section 10 of the said Act, in order thereby that a right of action should accrue, limitation triggering the commencement of the period, the in adverse land concerned must be possession of some person in whose favour the period J24 I" i of limitation can run ... possession is never "adverse" if enjoyed under a lawful title or by the leave or licence of the proper owner. But a licencee whose licence has terminated or expired rapidly acquires the status of an adverse possessor in whose favour time can begin to run" 9.13 In her decision on this issue, as appear at page 40 of the record of appeal, the learned Judge stated that:- is statute barred, "The record shows that the defendant who has been sued in this matter and has raised the preliminary issue that the action is the registered owner of the land and therefore she cannot be said to be in adverse possession of the land. Thus the limitation period does not apply and the is not statute barred, and the plaintiffs action preliminary issues raised in that regard fails and it is dismissed." 9.14 Our perusal of the record of appeal does not reveal any allegation by any of the parties that the property was held in adverse possession by anyone. This is because and as rightly submitted by the appellant, neither herself nor the deceased held the property in adverse possession. Further it is clear, based on the authorities relied on by the appellant in her arguments that adverse possession applies to situations where the possessor of land acquires by holding the land without right for a period of twelve years. The net effect of adverse J25 possession is that the true owner of the property is stopped from claiming the land due to the restrictions under the Limitation Act3 • 9.15 It was therefore not correct for the Court to hold that the limitation period did not apply, and that the plaintiff's action was not statute barred, merely because the appellant was not in adverse possession. 9.16 In their further argument on this issue, the respondents contend that after the judgment of 28th February, 2020, title to the appellant was nullified as the judgment deemed that she never assumed the capacity in which title to Plot No. 29 was transferred to her. 9.17 We have carefully perused the judgment of the lower court being referred to as appear at pages 122 to 149. There is nowhere in that judgment where the learned Judge nullified title to the appellant. The Lands and Deeds Registry Act in Section 34s is clear on the grounds for vitiating a certificate of title. Certainly, the fact that a marriage was nullified cannot in our view, lead to a certificate of title to be deemed as J26 -, nullified, as contended by the respondents herein. In our view, this contention is misconceived. 9.18 In the final analysis, we find that there is merit in the appeal. It is our view that this action was statute barred as it should have been brought within twelve years from the time the action accrued. Both grounds of appeal having succeeded, we award costs to the appellant to be taxed in default of agreement:· · J ·········································· M. J. SIAVWAPA u,u.uGE PRESIDENT ........ ~ ...•••........••• A. M. BANDA-BOBO COURT OF APPEAL JUDGE J27