Paul Evans Kasonde v Finance Building Society and Anor (Appeal 194 of 2016) [2017] ZMSC 211 (10 March 2017)

h SELECTED JUDGMENT NO. 9 OF 2017 P. 270 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 194/2016 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: PAUL EVANS KASONDE APPELLANT AND FINANCE BUILDING SOCIETY LINGSON CHIKOTI 1st respondent 2nd respondent Coram: Wood, Malila and Mutuna, JJS. On 7th March, 2017 and 10th March, 2017. For the Appellant: Mr. Nganga Yalenga - Messrs Nganga Yalenga & Associates For the Respondents: Mr. A. Roberts Messrs - Alfred Roberts & Company JUDGMENT Wood, JS, delivered the Judgment of the Court. Cases re ferred to: 1. Zambia Railways Limited v Godfrey G. Daka and others Appeal No. 169/2006 2. John Mumba Museteka, Dr. W. Amisi S. Simuyani v Zambia Red Cross Society (2006) Z. R. SC 3. Lewanika and others v Chiluba(1998) Z. R. 79 4. Jamas Milling Co. Ltd v Imex International (Pty) Ltd (2002) Z. R. 79 5. Robert Lawrence Roy v Chitakata Ranching Company Limited (1980) Z. R. P. 271 6. Lisulo u Lisulo (1998) Z. R. 75; 7. Milorad Saban and another Gordie Milan (2008) Z. R. 233 Legislation referred to: 1. High Court Rules Cap 27: Order 39 This is an appeal against a ruling of the High Court reviewing its earlier decision made on 15th May, 2014 granting the appellant leave to challenge the title of the 2nd respondent relating to Stand No. 2284 Ndola on the merits. The background to this appeal is this. The appellant was an employee of Zambia Railways Limited. He occupied House No. 71 on Stand No. 2284 Kariba Road, Ndola by virtue of his employment. He made an offer to purchase this house on 29th March, 1995 and Zambia Railways Limited agreed to sell it to him at the price of K7,700,000.00 on 18th March, 1999 as part of his retrenchment package. In its offer to him, Zambia Railways Limited indicated that it had deducted the sum K6,672,000.00 from his benefits and had applied it towards the purchase price. J2 The balance of KI, 131,000.00 was to be paid within four months from the date of the offer. P. 272 Sometime in 2003, Zambia Railways Limited commenced an action against Godfrey G. Daka & others1 under cause number 2003/HN/342 for an order for possession of its houses occupied by the defendants. The appellant was a party to Cause No. 2003/HN/342. This fact was confirmed by Mr. Yalenga on behalf of the appellant at the hearing of this appeal. Cause No. 2003/HN/342 became Appeal No. 169/2006 when the defendants appealed against a decision of the High Court which held that as the defendants had made counter-offers, there was no contract. This court agreed with the High Court and in a judgment delivered on 8thApril, 2009, dismissed the appeal. Following the appeal, Zambia Railways Limited offered Stand Number 2284 Ndola to the second respondent, who bought it using a mortgage from the first respondent on 23rd April, 2010. The second respondent defaulted in his mortgage repayments and as a result, the first respondent commenced a mortgage action cause number 2013/HPC/0024 against him and obtained judgment for the debt on 1st March, 2013. A writ of possession was issued and when bailiffs arrived to evict the appellant on 22nd November, 2013 at 18:00 hours, the appellant became aware that the property he was occupying and thought was his, had been sold by Zambia Railways Limited to the second respondent. J3 P. 273 The appellant decided to intervene in the proceedings in cause number 2013/HPC/0024 and so on 28th November, 2013 applied to set aside the execution and judgment. An ex-parte order staying execution and or sale of the house was obtained on 29th November, 2013 with an inter partes date set for 31st March, 2014. In a ruling delivered on 15th May, 2014, the learned Judge held that the judgment and execution were both irregular primarily because the first respondent did not comply with Order 88/5/8 RSC which requires a Mortgagee to give an occupier notice. She therefore gave the appellant as an intervener an opportunity to challenge the title to the second respondent on the merits. The first respondent was dissatisfied with the ruling and applied for leave to appeal. When the matter came up for hearing of the application for leave on 18th May, 2015, the proceedings took a rather unusual turn. The learned Judge asked the parties what their preference was. They were asked to choose whether to go on appeal or to have the matter reviewed. Both advocates opted to have the matter reviewed. The learned judge then ordered the parties'to file the necessary application for review. r When the matter came up for review on 22nd March, 2016, the intervener’s advocates did not appear. The matter proceeded and ruling was reserved. The ruling was delivered the following day J4 P. 274 and the learned Judge reversed her earlier ruling of 15th May, 2014 essentially on three grounds. The first ground was that there was new material evidence from Zambia Railways Limited which showed that the appellant had not been given possession of the house after the Supreme Court Judgment. The second ground was that the intervener and other ex-employees of Zambia Railways Limited had purported to pay the balance of the purchase price ten years after the offer period of four months had elapsed. Lastly,; the intervener had failed to produce any documentary evidence to substantiate his claim that the property had been surrendered to him by Zambia Railways Limited. Prior to the visit by the bailiffs which we have referred to above, a number of events relevant to the present dispute, took place. On 25th May, 1999, the appellant wrote what appears to be a counter-offer to Zambia Railways Limited stating that he would accept to purchase the property for K5,860,000.00 in accordance with a 1994 Government Valuation Report and a High Court Judgment dated 26th August, 1997. On 9thJune, 2009 he made a cash payment of KI, 131,000.00 to Messrs Wilson Mwale & Company for the balance of the purchase price. This amount was remitted in a composite cheque to Zambia Railways Limited on 15th September, 2009. The record of appeal shows that the appellant was paying rates in respect of the property to Ndola City Council as there is J5 P. 275 proof of a rates receipt dated 20th January, 2014. There is evidence in the record of appeal which seems to suggest that the appellant has been in occupation since 1981 and he continued occupying the property in 2010. It is also quite clear from the record of appeal that the first respondent did not comply with the requirement under Order 88 Rule 5 (4) RSC to give particulars of every person in possession of the property. There was also no notice given to the appellant by the first respondent. When reviewing its decision, the court below took into consideration a letter from Zambia Railways Limited dated 2nd September, 2015 addressed to the first respondent’s advocates which stated that there was no documentary evidence from its Estates Department to show that in March 2010 it had, contrary to the Judgment, of this court of 8thApril, 2009 in Appeal No. 169/2006, proceeded to give possession of the property to the appellant. The court also considered that the appellant and other ex-employees purported to pay the balance of the purchase price ten years after the four months’ time limit within which to pay the balance had expired and that as a result Zambia Railways Limited had refused to accept the money. After considering this evidence, the court concluded that the appellant had failed to produce any documentary evidence to substantiate his claim that the property had been surrendered back to him by Zambia Railways Limited. J6 P. 276 The court then held that the appellant’s claim as intervener in the court below was without legal foundation and dismissed it. The appeal has been brought on three grounds. The first ground is that the learned Judge erred in law and fact when she held that the appellant had not provided documentary evidence of having been granted possession of the property to the respondent when the record shows that a writ of possession issued by the first respondent was executed on 22nd November, 2013. Counsel for the appellant argued that the appellant had demonstrated in his affidavit in reply as intervener that after the Judgment in Appeal No. 169/2006, he had been given back possession of the house and had even started paying rates to Ndola City Council. The finding by the learned Judge that he had not provided documentary evidence of having been granted possession of the property was therefore perverse and should be set aside. The first respondent has argued that the appellant’s first ground is completely baseless and legally without merit because of our decision in Appeal No. 169/2006 in which we held that the former j retirees of Zambia Railways Limited had no valid contracts to purchase the houses. The first respondent took the view that the appellant was bound by the decision of this Court as he was party to that action. The appellant referred us to a letter by Messrs i J7 P. 277 Wilson Mwale & Co. as proof of the fact that he was listed as a party to Appeal No. 169/2006. The first respondent argued that the appellant was bound by the principle of res judicata and could not therefore re-litigate the same case as it had been decided earlier in Appeal No. 169/2006. On the argument relating to the absence of documentary evidence, the first respondent was of the view that there was no documentary evidence of the allegation by the appellant that he had been given back possession of the house. Heavy reliance was placed on the letter written by Zambia Railways Limited to the first respondent’s advocates stating that there was no documentary evidence from its Estates Department showing that the appellant had been given back possession. This letter according to the first respondent, was proof of documentaiy evidence that Zambia Railways Limited had not acted contrary to the judgment of this Court in Appeal No. 169/2006. The first respondent concluded by stating that the first ground of appeal must fail. The second ground of appeal is that the learned Judge erred in law and fact when she held in an application for leave to review and without giving the appellant an opportunity to be heard, that the appellant’s claim was without legal foundation because the appellant and other ex-employees purported to pay the balance of the purchase price ten years after the offer period of four months had already expired. The question of whether the payments were J8 statute barred or not was not in issue for review. The issue raised was one of estoppel against Zambia Railways Limited’s decision to sell the house to the second respondent. P. 278 The appellant, according to Counsel, was therefore entitled to be heard by the court below on this issue. Counsel argued that the finding by the court, that the appellant had not produced any documentary evidence was not supported by the evidence that was before the court. The first respondent’s response to this argument was that the second ground of appeal must fail as the appellant had consented to a review of the lower court’s ruling of 15th May, 2016. The first respondent argued that the appellant did not attend the hearing for the review and cannot now be heard to cure the defect in the lower court’s ruling on appeal as the appellant had in fact filed affidavits and skeleton arguments opposing the application for review. The first respondent argued that the argument of estoppels was irrelevant because the lower court is bound by our decision in Appeal No. 169/2006. The third and last ground of appeal was that the learned Judge erred in law and fact when she held that the letter dated 2nd September, 2015 referred to as exhibit “TS1” in the first respondent’s reply amounted to new material facts which were not available to the first respondent when the said exhibit clearly J9 shows that the first respondent's advocates and Zambia Railways Limited had been communicating over the same cause since 2013. P. 279 Counsel argued that there was nothing new as the contents of the letter of 2nd September, 2015 were similar to the letter dated 24th December, 2013. Counsel further argued that the learned judge’s decision to review her own earlier ruling was an attempt to correct what she perceived was a wrong decision she had earlier delivered in favour of the appellant. As at that stage there was no application for review pending before the court and therefore it was a mystery where the fresh material evidence came from for the court below to feel compelled to review its own decision. The court below therefore fell into error when it purported to review its earlier ruling with a view to correcting it when the proper procedure was for the court to grant or decline to grant leave to the first respondent to appeal to this court. The first respondent’s argument in relation to the third ground of appeal was that it should be dismissed as the appellant’s advocates had consented that the ruling of the lower court should be reviewed. Having consented to a review, the appellant could not on appeal, raise procedural issues in connection with exhibit “TZ1.” The first respondent argued that the information was new material evidence that was important for the lower court to make a decision. J10 P. 280 The parties relied on their heads of argument and did not depart in any material way from them when the appeal was heard. We have considered the evidence on record and the submissions of counsel as well as the ruling appealed against. We have not seen any arguments from the second respondent in this appeal. The issue as we see it generally is whether the learned judge should in fact have reviewed her ruling in the first place. While we accept that under Order 39 of the High Court Rules Cap 27 of the Laws of Zambia any judge may, upon such grounds as he shall consider sufficient, review any judgment or decision given by him, the order does not give an option to a judge to ask litigants whether their preferred choice is to have the matter reviewed or to proceed on appeal as happened in this matter. What is however critical to this appeal is what is contained in the affidavit in support for special leave to review sworn on 28th May, 2015. Paragraph 7 of the affidavit in support leaves us in no doubt that what the first respondent was attempting to do was to ask the learned judge to set aside her own judgment, not on grounds associated with applications for special leave to review or in cases where no special leave is sought, for leave to review itself. Paragraph 7 and its six sub-paragraphs state that the learned Judge did not consider the affidavit in opposition to the summons Jll P. 281 to set aside or the judgment of this court in Appeal No. 169/2006. It goes on to state that the learned Judge did not consider the defence of res judicata or first respondent’s skeleton arguments. The last point raised was that the second respondent had acquired title to the property in issue. All these arguments should not have been in an affidavit in the first place as they were inappropriate for an application for special leave to review or for an application to review. They should have been raised on appeal as the learned judge was functus ojficio at the time she was hearing the application for special leave to review. We say so because in an application for special leave to review a party is duty bound to disclose the reason why the application is being made outside the mandatory 14 days stipulated in Order 39(2) of the High Court Rules Cap 27. No such reason has been disclosed in either the first respondent’s affidavit in opposition or the affidavit in reply. It is this reason that the court should have considered in order to reach a decision whether or not to grant special leave to review. If the court was satisfied that there were sufficient grounds for the delay then it would move on to the next level which would be to consider the application to review itself. Once leave is granted, a party must show or find a ground or grounds considered to be sufficient, which then opens the way to the actual review. Review, as we held in Lewanika and others v Chiluba3, enables a court to put matters right. It does not exist to afford a dissatisfied litigant a chance to argue for an alteration of a decision so as to bring about J12 P. 282 a result considered more acceptable. We are therefore of the view that the learned judge adopted an incorrect procedure with regard to the application to review that was being made out of time. When the learned judge dealt with the application to review itself, she applied wrong principles by taking into account matters not suitable for review such as the ten year period and the letter from Zambia Railways Limited. The learned judge was clearly persuaded by the letter dated 2nd September, 2015 from the Company Secretary of Zambia Railways Limited who had stated that there was no documentary evidence to show that the appellant had been given possession of the house by Zambia Railways Limited after the judgment of this Court. The learned judge was also persuaded by the argument that the appellant should have paid the balance of the purchase price within four months from the date of the offer and not ten years later. These issues were already known to the learned judge when she had dealt with the matter earlier as can be seen from the exhibits attached to the various affidavits in the record of appeal. The fact that they were not dealt with conclusively initially did not give her the licence, even upon application for special leave to review, to re-open a matter she had already decided upon. She should instead have declined the application and granted leave to appeal. In any event the issues being raised over whether there was any delay in paying the balance or whether or not he had been given possession or was a J13 party to the proceedings which had been dismissed on appeal should have been decided at trial as they are contentious. P. 283 Bearing in mind what we have stated above we shall now address the specific grounds of appeal. The appellant as intervener has argued that the mere fact that he had demonstrated that he was in occupation and had been paying rates to Ndola City Council was sufficient to establish that he had been given back possession of the house. The evidence on record seems to support this argument as the eviction by the bailiffs of the appellant was in itself proof that he was occupying the house after the judgment of this Court. The rates demand from Ndola City Council to the appellant on 20th January, 2014, is also a strong inference leading us to conclude that waiver of some description had been made relating to the house regardless of our judgment. This is however an issue that could only be tested during trial. We also find it rather unusual that the second respondent preferred to remain inconspicuous in this dispute even after being issued with a certificate of title dated 23rd April, 2010. He does not appear to have made any contact with the appellant who continued to happily occupy the house until 22nd November, 2013 when the bailiffs paid him a visit with a view to evicting him. This is further evidence which supports the argument that the appellant occupied the house by virtue of some arrangement with Zambia Railways Limited as it is inconceivable that the house could have been J14 forgotten or abandoned for such a long period of time. We find that there is merit in the first ground of appeal as there was sufficient documentary evidence to establish some form of P. 284 possession. The appellant has argued in the second ground of appeal that he was never given an opportunity to be heard on the substantive matter in connection with the payment of the balance after ten years or that it was beyond the statute of limitations. There is merit in this ground as well. The application before the learned judge was for special leave to review and there was no need, in our view, to allow the application on the basis of evidence which had no bearing to the application before the learned judge and without giving the appellant an opportunity to be heard on the substantive matter of whether or not he had been allowed into occupation after our judgment in Appeal No. 169/2006. We must dispel the notion in the first respondent’s heads of argument that because the appellant’s advocates had consented to having the matter reviewed then even if a wrong decision was reached by the lower court, the parties were bound by it. The learned judge was bound by established rules, procedures and decisions relating to how applications for review must be dealt with. The fact that the parties consented to a review does not ipso facto make the learned judge’s decision valid. We therefore find that there is merit in this ground as well. J15 P. 285 The third ground of appeal raises the question whether or not there was indeed new evidence to warrant the review. We have already indicated above that the learned judge had adopted an erroneous approach when faced with the question whether or not she should have reviewed her decision. Nevertheless, we shall repeat ourselves for the sake of guidance to lower courts and practitioners that Order 39 of the High Court Rules does not operate as a slip rule. Although it appears to be couched in wide terms it is not meant for moments of epiphany because it can only relied upon in limited circumstances. It cannot be used to correct glaring mistakes in judgments or rulings. That responsibility is for appellate courts. Order 39 r. 1 of the High Court Rules is worded as follows: “(1) Any Judge may, upon such grounds as he shall consider sufficient, review any judgment or decision given by him (except where either party shall have obtained leave to appeal, and such appeal is not withdrawn), and, upon such review, it shall be lawful for him to open and rehear the case wholly or in part, and to take fresh evidence, and to reverse, vary or confirm his previous judgment or decision. (2) Any application for review of any judgment or decision must be made not later than fourteen days after such judgment or decision. After the expiration of fourteen days, an application for review shall J16 not be admitted, except by special leave of the Judge on such terms as seem just. ” P. 286 In John Mumba Museteka, Dr. W. Amisi S. Simuyani v Zambia Red Cross Society2 (2006) Z. R. SC, we held that the power to review under Order 39 (1) of the High Court Rules is discretionary for the judge and that there must be sufficient grounds to exercise that discretion. In Jamas Milling Co. Ltd v Imex International (Pty) Ltd4 (2002) Z. R. 79, we held as follows on review at page 83: “For review under Order 39 (2) of the High Court Rules to be available the party seeking it must show that he has discovered fresh material evidence which would have some material effect upon the decision of the court and has been discovered since the decision but could not with reasonable diligence have been discovered before: Robert Lawrence Roy v Chitakata Ranching Company Limited (1980) Z. R. 198. Commissioner Dare stated as follows at page 202 in the Chitakata judgment: “As a matter of basic principle I have come to the conclusion that one can never take into account events which occur for the first time after delivery of judgment as grounds for review of a judgment. If it were otherwise there would never be an end to any litigation. The losing party would in most cases find something happening after he had lost which would enable him to ask for a second bite of the cherry. To some extent my conclusion is strengthened by the lack of success which both I and counsel have encountered in trying to find a direct authority to show of J17 any case, anywhere, anytime where a judgment has been reviewed on the strength of subsequent events. ” P. 287 What happened in the court below is that in an attempt to obtain what appeared to be a tactical advantage, the 1st respondent exhibited a letter from Zambia Railways Limited dated 2nd September, 2015 which was long after the ruling of 15th May, 2014 setting aside the judgment and execution and allowing the appellant to challenge the title of the second respondent on the merits. Quite clearly the learned judge took into account events which occurred long after her ruling which was inappropriate. In addition, there was really no fresh evidence upon which to base an application for review. The evidence in the exhibits attached to the application in support of the application for special leave was a re­ hash of the evidence that was already on record and had been dealt with. We have stated in numerous decisions that a party who wishes to apply for review must show that there is fresh evidence which could not have been obtained with due diligence. A perusal of Lewanika and others v Chiluba3; Lisulo v Lisulo6; Jamas Milling Company Limited v Imex (Pty) Limited4 and Milorad Saban and another Gordie Milan7 all show that we have consistently stated that while the power to review is discretionary, there must be fresh evidence for purposes of review under Order 39 Rule 1 of the High Court Rules as this rule was not designed for parties to have a J18 second bite and that litigation must come to an end. It is quite clear to us that the application did not qualify to be considered as an application for special leave to review or for review itself. P. 288 Even though the appellant has succeeded on all three grounds, the issue of the matter being res judicata looms large in this appeal. We have indicated at the beginning of this judgment that the appellant has admitted that he was a party to Cause No. 2003/HN/342 which became Appeal No. 169/2006. The property in issue is the same; the issues have been broadened by the sale of the property to the second respondent by Zambia Railways Limited who in turn obtained a mortgage from the first respondent and defaulted leading to judgment being entered against him. Mr. Yalenga has however raised a simple but persuasive argument. His argument is that even though judgment was obtained by Zambia Railways Limited against the appellant in Appeal No. 169/2006, there was what he termed “political intervention” leading to the house being returned to the appellant with a view to him buying it. This may appear to be an incredulous argument given the judgment of this Court in Appeal No. 169/2006, but the evidence on record, although not tested, appears to support his proposition. The evidence shows that the appellant had paid a significant deposit which does not appear to have been refunded by Zambia Railways Limited. There seems to be proof of the appellant having paid rates after the judgment of this Court in Appeal J19 P. 289 169/2006. He also appears to be in occupation although there is a writ of possession issued in Cause No. 2003/HN/342 and lastly the second appellant appears to have been an unenthusiastic buyer who does not appear to have made any contact with the appellant. All these issues seem to give credence to the argument by Mr. Yalenga that the appellant should, in spite of our decision in Appeal No.169/2006, be given an opportunity to prove his case as it is not uncommon for parties to reconcile their differences post judgment. This does not by all means mean that the appellant has proved his case as he may have to consider joining other parties to this action in order to bring it to its logical conclusion. From what we have said above it is inevitable that this appeal must succeed on all three grounds. The effective ruling is the ruling before review. The parties should be guided by that judgment. Any party dissatisfied is at liberty to take necessary steps. As the delay has been occasioned by the erroneous approach of the High Court, we hereby grant an extension of the period to the parties of thirty days within which to take any action they may deem appropriate in relation to that ruling. The ruling of the High Court appealed against is accordingly set aside with costs to the appellant to be agreed or taxed in default of agreement. A. M. WOOD SUPREME COURT JUDGE J20 P. 290 M^ALILA, SC SUPREME COURT JUDGE J21 4