Rosalia Mwamfuli v Ntimba & Another (Appeal 79 of 2012) [2018] ZMSC 318 (25 September 2018)

IN T"IIE SUPREME COURT OF ZAMB,IA HOLDEN AT LUSAKA (ClV[L J UR1SUJCTION) APPEAL o. 079/2012 BETWEEN.; ROSALia IWW'. AMFIJ. LI AN'D mrENDWA NTl:MBlA MAGG. IE BIMPUN1GWE }Sil' RESPONDENT 2ND RESPONDENT Comm· Mambilimaj CJ, Ha.maund , and Chinyamal JJS .. On 20t~ J uly 20 7 and on 25 September, 2018 . APPEARA. NCEB: Fb h ~ ppe Jani~ the Responden F . Mr"S. A.0 . TWUfU'.lSl fJ) Kitw:, Ch .mb~t'S, Legal Aid Bt,ard. (No Appecu ~~lee) JUD1 GMENT JS, deliv,ered the Jud . - ent of the Court. Case referred to,: L T. inity Engine(?;nl, - (Pu J rd tJ Zei mllia National Cbmmeroial B m L d (1 S, , 1997) ZR 189 ' · John R. Ng'andu L L _zarous Mwiinga ( 1988-1989) ZR 197 . Mw arJ/Q liiu. LUa v Judie.ml Cnmpl«ims Authority R 1 ,l i.ttor, 1ey Oene ti /2011) 1 ZR 31 'iiV cd,erwells Ltd v 'Wilson urn · el Jw;:kson ( 1984 J ZR 1. 1 - Access Bank (Zmnbia) Lin(ted. v Group PiveJ ZCDN Bus n ss . Pi1J11\ Jofnr Ve, ture (Suir-g as a PirmJ1 SCZ/ Bl 52/ .201 · . Leo atio:n refeued to. ~ i" ' % - l _ The Supreme Cour1 Ae, C:hap1le'r 25 of he Laws qfZambia Rr,..le 48(5) 2. The _ In testate Su .essien Acr. CAP 59j Lat.l.1s of Z" mbia, SecUon 9 {1 / (a) •, ~ . 1'he Housing (Sta.tutory and lmprc)l)emem Areas) Act. CAP 194, sect S 4 . The Rules of (ht~ StVJreme Court, White Book. 1999 Edition., <Jrdrr 3S Ru/.e l(-2) and Ru.le 2. By Notice of Motion, the l 41 respondent see.ks to set aside the judg~ent of this court dated 2nd September.20 14 on the ground that he was not given an opportunity to be heard at fue hearing of the appeal in this matter. ln the judgment th.is court upheld tbe appellant's appeal against the judgment of the Hign Court which ha ld that the l lll responaen t had acquired good title to a house he had bought. from a d.eceased 's estate because the 2"'1 respondent who was the admin istrator of the estate was entitled to sell !t pursuant to section 19(21 of the Intestate Succ~ion Act. The 1notion was argued on t he basis of affidavits and written submissions on e ither side, The respondents were not. in attend ance or represented at the hearing of the 1notion before us. The facts that led to the judgment which the 1" respondent ilnpugns i$ that a Mr Henry Mwamfull owned a house· No. 3326 Chirnwemwe in Kitwe. Mr Mwamfuli later died. He was survived by h1s children who included the appellant as well as Ms Doris Kabwe who was the second ·wite. After he died, the Buehl Local Court in J2 Kitwt: or.dered the administrator of Mr. Mwamfuli's estate to sw·rende,· the house to Ms r<abwe in a property settlement action instituted in tba.t Court. Ms I<abwe then registered the house in her name and she obtained a certificate of title issued by the Kirwe City Co1:.1nciL Later, .she died a nd the· administrator of her estate (the 2nd respondent herein) sold the house to the 1111 respondent . The appellant instituted an action in the Subordinate Court seeking the annulment of the transfer of the house from her late father's estate as well as the subsequent sale of the house or -a ltematively, an order for tbe payment to her of th e full value of the house, The Subordinate Court upheld the claim and ordered tbe reversion of the house to late Henry Mwamfuli's estate on the basis that 1vts Kabwe had only enjoyecl a life interest in the house under s ection 9 (1) (a) of the Intestate Succession Act which ended when s he died. l t was aJso h eld that the 2 11<1 respondent had 110 right to sell the house as Mr. MwamfLlli's children .still, had an in terest in it; that they had not given the 2 nll respondent pennis.sion to sell the house and U1ey did not also benefit from the proc.eeds of the sale. Oo ao application in the Subordinate Court to review its Jlldgment; the Court maintained i1s earlier decision. The High Court, J3 however, overturned the lower Court's decision on appeal and testored the house to the l ~1 respoudent, as it were, on the basis that be had acquired good title to the noiise. Aggrieved by the decision of the Hlgh Court, the appellant a pp~ed to th.is Court. We upheld the appeal on the ground that the house at issue was located in a statutory housing area subject to the Housing (Statutory and Improvement Areas) Act; that under section 3 of that Act, the dispute· relating to the disfJ'lbution of Mr MwamfuU's estate should have been instituted in the· Subordinate· Court and not U1e Lo.cal Court. Therefore. that the Local Court had no j4risdiction to vest the ho1,;lse in Ms Kabwe, renderi11g its decision a nullity. We, a ccordingly, quashed the proceedings in the Local Court for waJ1t of jurisdiction ,¥ith a direction that the house did not form part of Ms Kabwe 's estate and consequently, the 211111·espondent as admtnistrator of her estate had no power to sell it to the 1 •' respondent. Further, chat the 1 •1 r e.spondent had not acquired good title to the sajd house, We ordered the house to revert to Mr Mwrunfuli's children an~ advised that the 15 1 respondent co1.1ld have recourse to the estate of the late Ms Doris Kabwe. J4 The 1"1 respondent's grievance, according to the affidavit in support of the motion, ls that he was not heard in the appeal that led lo our decision stated above. He averred that the Notice of Appeal a.1.11:l the Memorandum of Appeal were not served on hi1n. He con1plained that as sucb, he had not been aware of the proceedings that led to our judgment. He stated that Counsel who had been representing hln1 in the High Court, Mr. Mukolwe of Messrs M1'!kolwe and Associates, wbo rua.y have been served with process, had passed away, a fact which the court should have considered before proceeding to hear the appeal. Therefore. that he wa.<1 hot informed of the appeal. It is the 1 ~· respondent's desire that the appeal be re opened and heard de nouo, in his presence so that he does not feel unjustly treated by this court for not having been heard; and that the· execution. of U;e Judgment be stayed pending the determmadon of the n10rion. As regards me law, the 1~, 1•espondenr's position is that RuJe 48 (5) of the Supreme Court Rules. (SCR), Ch.apter 25 of the Laws of Zambia and Order 35 rule 2, Rules of the Supreme Court (RSC), 1999 Edition, giv·e this cour1·. power to set aside iit-s O\Vtl judgment. For JS ease of reference, we hereunder reproduce the two provisions. RuJe. 48 (5) , SCR, states: ''An application .involving th.e decision of an appeal shall be made t'o the Court in like manner as aforesaid , but the proceedings shall be filed in quintuplicate and the application shall be heard in Court unless the Chief Jµstice or presiding judge shall otherwise direat " Order 3 5 Ru le 2, RSC, states: ''(~) Any judgment, order or verdict obtained where one party does not appear at the trial may be se t aside by the Court, on the l\pplication of that party, on such terms as it thinks, jus t . 12) An application under this rule must be made within 7 days after the trial ." Counsel for t:he 1 11 respondent acknow1edged eur statement of tht law in the case of Trinity Engineering (Pvtl Ltd v Zambia National Commercial :Sank Ltdl that "judgments of this court are final an.cl there can be no s tay of execution of a Jinaljttdgmene'_ He. however, contended that this law is only applicable in ci1·cumscances where there is -no injustice occasioned to a,ny party QS a result of an event that arose 1n the course- of the proceedings which the '¢arties had no opportunity to address ih court. Counsel, 1n any case, e1nphasised that Rule 48 (5), SCR is couched in s1.1ch a way that it gives ·the court power to mal<e an order to sei aside· its.own judgment. J6 as we 1..11'.lder stood the argument; tl1at Order 35/2, RSC further empowers the cou1·t to set asid,e it s own judgment which was delivered in the absence of the applicant. Counsel also r eferrc:d to the commentary in Order 35/2/'2, RSC which :states: ''The absent party should appty fot a new trial to .... the court which tried the action and {f possible to the trial judge himself:... An affidavit of merits ls not necessary though the judge may require one in his di scretion." It was submitted according.ly, U1at the effect of the foregoing hnv is to ensure that the court is not prevented from giving redress and to unclo any injustice arising from a jud gment passed in the absence of a party. I! was submitted further that the is1 respondent had no opportunity to address the court on the issue(sj before il which includes. inter alia, the fact that he was a bo,~aficl,e purchaser for val ue without notice, as we understood the argument;· that the foregoing is a very compelling reason for us to set asicle the judgment olthe court. Another case, among others, cited to support the motion to re-hear the appeal was John R Ng'andu v Laza.rous Mwiinga2 in which we held to the effect that a judge had no jurisdiction to dismiss the appeal for want of attendance of tile appellant's a dvocate in the J7 absence of proof of service of a notice of the new hearing date; that the only course open to the court is to allot a fresh hearing date and to cause notices thereof to be served on the advocates for the parties or to strike the case out of the list and leave it to the parties to make application to restore. We were thus urged to allow the motion on the basis tbat the reasons advanced in s upport thereof a.re neither frivolous nor vexatious. The appellant's response in opposition to the motion, by way of an affidavit in opposition, is that as far .as Counsel was aware the respondents' advocates were all duly served witl1 the Notice of Appeal, the MernoraJ'lctum of Appeal land the Notice of Hearing]; ~hat if the J •t respondent's advocate had died at the time of the hearing, the f $I respondent ought to have made follow- Lips on the matter; and rn effect that the court had satisfied itself that sll parties were served with the Not.ice of Hearing before proceeding. It was averred. in any case. that the 1 Rt respondent has not shown any reason on the rneri'ts for the court to revisit the Judgment herein , In tenns of the law, it was subrnhted by Mr Twumasi that this cou1 t has 110 jurfsdiction to review its judgiuent or set aside and re- JS open an appeal. Tbe case of Muyawa Liuwa v Judicial Complaints Authority and Attorney GeneraJ3 was cited in which we said that: ''The Supreme Court has no jurisdiction to review its judgment or to set aside and re-open an appeal. lf it were not so, there would be no· rma1ity in dealing With appeals", Counsel submitted that on the foregoing authority alone, the motion should be dismissed. It was further submitted that the applicant ( J·sc respondent. J has not ,given any meritorious grounds for the coui·t to revisit its judgment contrary to our guidance in cases such as Waterwells Ltd v Wilson Samuel Jac.kson'1 which require the party applying to show a good case on the merits .. It was argued , there fore, that this court cannot set. aside its judgment. merely because the othe,· party did not attend; that a perusal of the judgmen t shows that the court considered the 'issues ,as well as case atitJ1oritles. lt was also pointed out that this motion, filed on 22 11d,July, 2015 comes over l 1 months after the delive1y of the unp\.tgned judgment of 2 11 "' September, 2014, It was pointed out that in terms of Order 35/ l /2, RSC, any application to set aside judgment rnade in the absence of a party should be made within 7 days afteT the tria,!. This was not done and no extension of time was applied for. It was J9 ' submitted that the d elay was inordinate in n1aking this application; that it would be unfair and prejudicial to the appellant if the motion was to be granted. We have considered the motion and the subn1issions on behalf of the parties. We have also taken into account our judgment dated 2 1"1 September, 201..4 , The crLi.x of the motion is whether we should set aside the said judgment and open the a ppeal for re-hearing so that the l •1 respondent is given an opportunity to argue his case. The motion is not for the stay of the judgment of this court which we have no jurisdiction to grant. We would like to begin by .saymg something about the provjsjons under which the motion was filed. According to the 1" respondent's advocates, Rl1le 48(5), SCR 1s COUC'J1ed in such a way as to !")ermit the rnaking of an application to the Court to s et aside its own judgment. We- bave no proble1n with that submission as Lbe provision qui le clearly allows the making of an "application inuolulng tlte decision of r,zn appear to the Court, We ·see no reason why this s hould not include an application ro set aside judgment pursuant to t.he inherent powe,· of'thtt Court. JlO . As 1.0 the applicability oJ Order 35 Rule 2 , RSC, however, it is clear that the prov1sion is concerned with r,roceeclings before the High Court in which it fs sought to set aside a judgment rendered by that oourr. This fs con.firmed by the fa.ct that the Rule talks abot1t a party failing t-0 appear a.t the· trial which as we understand, distinguishes it from an appeal hearing. Tbe commentary or editorial note in Order 35/2/2, RSC, also talks about the absent parcy appzying to "the Court wlticli tn:ed ·th.e action a,nd if possible to the tria} j udge himself''. There can, therefore, be no doubt that the intention of the law -was to provide for the setting aside of judgments rendered by the H.igh Court. fl'u.rther, the Rule requires. that the appllcation is filed wlthin 7 days' of the judgment which did not happen in this case. It should be noted also tu.at specific provision is made with respect to the CouJt of Appeal in England on tbe subJect-matter under Order 59 / J / l 51 , RSC. Tn sum, therefore,. Ordet' 35 Rule 2 , RSC does not apply to applications before this coun bu t to the High Court as we have shown. We have a!,·eady aUuded to the fact that an application to se.t aside ajudgrnent of the-court pursuant to 'its inhereot juTisdiction is permissible under Rule 48(5) SCR. Recently, this Court affirmed J11 ,, nd very narrowly qualified this posilion io the case of Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture ($uing as a Firm~~ in which the following was said: "The final point relates to the exercise of the inherent jurisdiction to reopen a case after a decision is passed. It is common cause that this court does have the inherent power to, in very rare circumstances, reopen its final decision and rescind or vary such decision. T,his was our holding in the case of f'insbury Investments Limited and Another v Antonio and M~uela Ventrigria which both parties referred to fn their submissions. The learned counsel for the respondent stressed the need for finatity of decisions so as to enhance ce.rtainty, predictability and acceptability of these judgments. As we emphasised in the Finsbury Investments case, reopening of tfte decision .made by the full court will rarely e ver be permitted, We, of course, realise that court decisions, by their very nature hardly ever give universal satisfaction to both parties to liti~ation. It is not 1nfrequenUy the case that one party or the other, and sometimes both parties, would deprecate a judgment ot decision when it is given. This does not a priori e11title the dissatisfied party to apply to reopen the In our view, the.re is public interest in litigation 'bein,g matter. brought to a binding: end. Apart from the narrow instances when the court will allow reopening of a matter, there is great good sense in bringing closute to court matters even if neither party is entirely satisfied. We have in numerous cases such as Attorney. Qeneral v K;\Dg'ombe and Nahar Investments Limited v Grindlays Bank International Limited stressed that there ought to be finality to litigation ... '" T'he i.mplication oftlle foregoing ts tbat. all those cases that assert that thert:1 Is no jurisdiction i,1 the Court to n :view or re-open a case should be read in rile light or what we :;aid in the case_ The case and those J12 referred to show that it is possible to re-open a case before tltis court u there are compelling reasons for doing so. In the case before us the major grievance 'is that the l ~, respondent was never aware of the hearing d ate ·of the appeal even though he aclmowledges the probability that his advocates were served with the necessary process. The argument on behalf of the appellant is, however, that the record shows that tJ1e respondent's advocates were served with the Notice of Appeai and che Memorandum of Appeal. that if the advocate was deceased at the time of the hearing, the l $• respondents should have followed up the n1attel'. We do not think that the l " respondent can legitltnately use his own absence .at the· hearing of the -appeal to jllstlfy the motion . He was being represented by counsel. He has. acknowledged the probability tha.t the- advocate ,nay have been ·served with the .necessary process. ln fa.ct the appellant's position is that the advocate was actuaUy served . As pointed out by Mr Twumasi this Court ordinarily satisfies itself that parties were notified of the hearing date before proceeding. The fact U1at there may have been no communication between the advocate and his client cannot have an • effect on the proceedings. Certainly, the situation in this case was unlike that dealt with in the case of John R Ng'andu v Lazarous Mwiinga1 cited earlier. The Court, in this case, was clearly entitled to proceed in the manner that it did, But this is the less significant consideration. The more significant one and on which the motion is resolved is that the Court took into account the merits of the appeal. The J s• respondent's central argument is that he was not heard on the point that he was a bona fide purchaser of the house for value and without any notice. The argu1nenl cannot be of any .assistance to the 1 •1 respondent bearing in n1ind what we srud in our judg1nen1.. In the impugned judgment we found that the house at issue was located in a statutory housing improvement area administered under the Housing (Statutory and Improvement Areasl Act. The Local Court has no jurisdiction to deal with estates (comprising hoases) covered under that Act. The court that has power to deal w11.h estates under that Act is the Subordinate Court. Consequently. the Local Court hatl no power to make 1,.he disposition of the house at a ll. This meant that everything that llowed from t he disposition had .no effect including the sale of the house by the 2nd respondent who had been appointed J14 as ad1ninistrator of Ms. Kabwe's estate, In the circumstances, we are satisfied that the matter at hand is not one of the rare cases which we can re-open to hear a party because we had all the material needed to reJ1der a just decision on the record notwithstanding the fact that. neither the 1 ~1 respondent nor his advocate may have been in attendance at the hearing. Our conclusions were based on the facts and .the law from which the 1•1 respondent suffered no prejudice whatsoever. The motion has no merit and we dismiss 1t with costs to the appellant. ....••.•.•.•... •••..•... ........••..••... •. J. C. MAMBILIMA CHIEF JUSTICE ....... ... .... ~~·~········· E. M. HAMAUNDU SUPREME COURT JUDGE • • • • • • • • • • • • • • • J ••• • • • ~, • • • • • • • • • • • • • • J . CHI SUPREME COURT JUDGE J15