Rosemary Bwalya v LCC and Anor (Appeal 168 of 2015) [2018] ZMSC 551 (8 June 2018)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 168/2015 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ^ROSEMARY BWALYA PELLANT AND LUSAKA CITY COUNCIL ESTHER KANENGOKI - 8 jun 2613 BOX 50067 _ BUSAKA 1st RESPONDENT 2nd RESPONDENT CORAM: Wood, Kajimanga and Musonda, JJS on 5th and 8th June, 2018 For the Appellant: In Person For the 1st Respondent: N/A For the 2nd Respondent: N/A JUDGMENT MUSONDA, JS, delivered the Judgment of the Court Cases referred to: 1. Development Bank of Zambia & Another v. Sunvest Limited & Another [1995-97] Z. R. 187 2. The Registered Trustees of the Archdiocese of Lusaka v. Office Machines Limited [2007] Z. R. 138 3. Kelvin Hang’andu v. Webby Mulubisha [2008] Z. R. 82 J2 4. B. P. Zambia PLC v. Interiand & Motors Ltd. (2001) Z. R. 103 5. Bank of Zambia v. Tembo and Others (2002) Z. R. 103 6. Zambia Breweries v. Central and Provincial Agencies [1983] Z. R. 152 7. B. P. Zambia PLC v. Interiand Motors Limited [2001] Z. R. 37 8. Mukumbuta & 4 Others v. Lubinga & 3 Others [2003] Z. R. 55 9. B. P. Zambia PLC v. Interiand Motors Limited: SCZ Judgment No. 5 of 2001 10. Allan Kandala v. Zambia National Commercial Bank PLC [2011] Z. R. Vol. 1 11. Aaron v. Shelton [2004] 3 ALL. E. R. 560 12. Emmanuel Mponda v. Mwamba Mulenga & Two Others: Selected Judgment No. 42 of 2017 13. Patel v. Patel (1985) Z. R. 220 14. Muyawa Liuwa and Judicial Complaints Authority & A-G (2011) 1ZR Legislation referred to: 1. Section 9 of the Lands Tribunal Act No. 39 of 2010 2. Section 14 of the Lands Tribunal Act No. 39 of 2010 3. Section 13 of the High Court Act, Cap. 27 4. Section 16 (1) of the High Court Act, Cap. 27 Other works referred to: 1. Halsbury’s Laws of England, Vol. 32, 4th edition, paragraph 844 2. Order 18/19/16 of the White Book (1999 edition) 3. Order 18/19/15 of the White Book (1999 edition^ This appeal is arising from a judgment of a High Court Judge who dismissed, with costs, the appellant’s earlier appeal to that court against a Ruling of the Lands Tribunal dismissing the appellant’s complaint to the Tribunal for want of merit. The relevant history, background facts and circumstances surrounding the present appeal hardly excited debate in the court below. The appellant had, once upon a time, been the owner or lessee of a leasehold property known as Subdivision 441 of Stand No. 8137, Helen Kaunda Compound, Lusaka (which we shall continue referring to in this judgment as “the property”). Sometime in or about the month of April, 2002, the appellant executed a legal mortgage in favour of Zambia National Commercial Bank PLC (hereinafter referred to as “ZANACO”) over the property for the purpose of securing a sum of Kwacha Forty Five Million (K45,000,000.00) which ZANACO had availed to the appellant together with all associated interest and costs. Following the appellant’s failure to resolve her indebtedness to ZANACO as revealed above, ZANACO instituted a mortgage action being Cause 2002/HPC/0400 in the court below against the appellant which culminated in the entry of a judgment by Mr. Justice E. Chulu on 10th December, 2003 which was expressed in the following terms: J4 “Upon summons to enter judgment pursuant to order of court dated 30th April, 2003 and UPON READING the Affidavit in support there being no Affidavit in opposition, and UPON HEARING counsel IT IS THIS DAY ADJUDGED and ORDERED as follows: 1. That judgment be and is hereby entered in favour of the Applicant for recovery of the full amount of the debt plus interest as agreed in the legal mortgage dated 4th April, 2002 relating to Stand No. 441 of 8137, Helen Kaunda, Lusaka. 2. That the respondent be and is hereby allowed a further grace period of 60 days within which to fully pay all her indebtedness as aforesaid. 3. That in the event that the debt is not fully paid at the expiration of the 60 days aforesaid, the respondent shall deliver vacant possession of the mortgaged property [being] Stand No. 441 of 8137, Helen Kaunda, Lusaka to the applicant who shall be at liberty to foreclose [on] and sell the said property. 4. That costs be for the applicant to be taxed in default of agreement. ” As earlier noted, it was not in dispute that the appellant did not resolve her indebtedness to ZANACO during the 60-day moratorium which Honourable Justice E. Chulu had granted to the appellant when that court entered judgment in favour of ZANACO. On 6th June, 2005, an advertisement was published in the Times of Zambia of that day by which ZANACO invited bids or offers for the purchase of the property. J5 On 29th June, 2007, ZANACO, as mortgagee in possession, executed a contract of sale with the 2nd respondent in respect of the property. The agreed purchase price was KI50,000,000.00. On 6th November, 2007, the 1st respondent granted ZANACO the necessary consent to transfer the property to the 2nd respondent while the relevant property transfer tax for the transaction involved was duly addressed with Zambia Revenue Authority by the 20th of August, 2008. ZANACO and the 2nd respondent subsequently executed the requisite assignment to convey title in the property to the latter which assignment was duly endorsed on the memorials of the certificate of title relating to the property on 20th October 2008. An issue or so worthy calling to mind in the context of this judgment is that, well after the appellant had failed to take advantage of the moratorium which Chulu, J had granted her in his judgment in favour of ZANACO and, in all probability, well after the latter had started enjoying the fruits of that judgment, the appellant started resorting to a variety of what can only be described as desperate measures aimed at frustrating ZANACO’s success in the High Court. These measures included applications J6 to stay execution, for review, for injunctive relief, for committal and even the institution of a fresh action in respect of the same subject matter being Cause 2005/HP/0893 which Honourable Musona, then Deputy Registrar, subsequently dismissed as he deemed the action an abuse of court process. On 25th November, 2008, the Honourable Mr. Justice M. S. Mwanamwambwa (as the Hon. the Deputy Chief Justice then was) delivered a very comprehensive Ruling in Cause 2005/HP/0893 in which the appellant was the 1st Plaintiff while the 2nd respondent was the 4th Defendant. This Cause had five (05) other parties aside from the appellant and the 2nd respondent. The 1st respondent in this appeal was not, however, one of the five. For completeness, the Hon. Mr. Justice M. S. Mwanamwambwa’s Ruling involved three (03) applications, all at the behest of the appellant. For the avoidance of doubt, the subject matter of each of the three applications was the same property in issue. The applications were for committal, an order of injunction and to stay execution/to dismiss action. As things turned out, the Honourable Judge Mwanamwambwa found each of the three applications by the appellant untenable and accordingly dismissed each one of them. J7 An aspect of the Hon. Mr. Justice Mwanamwambwa (as hi Lordship, the honourable Deputy chief Justice then was)’s Ruling which attracted our extended interest in the context of this judgment was His Lordship’s pronouncements upon the Ruling of Deputy Registrar, Honourable Musona (since elevated to Musona, J) dismissing the appellant’s Cause 2005/HP/0893 for being an abuse of court process. Mr. Justice Mwanamwambwa noted in his ruling that the appellant had been orchestrating a variety of applications both in the High Court as well as this court over the same subject matter. Explaining his reasons for dismissing the appellant’s applications, Judge Mwanamwambwa noted that the appellant’s apparent mischievousness had been exemplified by the fact that her multiple applications were arising against the backdrop of her failure to defend the mortgage action which had been tenable before the Hon. Chulu, J. Mr. Justice Mwanamwambwa further noted that, after failing to defend the action before Chulu, J, the appellant unsuccessfully sought to have execution of that learned judge’s judgment stayed. The learned judge went on to say that the appellant’s like exertions J8 before two single judges of this court also failed to yield her desired outcome. Subsequently, she abandoned her exertions seeking to stay Chulu, J’s judgment only to return to this same learned Judge, this time armed with an application to have the Judge review his mortgage action judgment. However, Chulu, J, found no basis for revisiting his earlier judgment. Following the appellant’s failure to secure any of the reliefs that she had been seeking as unravelled above, she decided to embark on a different expedition which involved instituting a fresh action against ZANACO. In dealing with this fresh action, Mwanamwambwa, J, noted that Sub-division 441 of Stand No. 8137, Helen Kaunda, Lusaka (referred to in this judgment as ‘the property’) had been the subject of three court actions which, in substance, involved the appellant and ZANACO. Three different High Court Judges had handled the matters, the learned judge noted. In the light of the circumstances alluded to above, Mwanamwambwa J, had no difficulty to dismiss the appellant’s fresh action on the basis that it was dealing with the same parties J9 and the same subject matter and was a clear case of multiplicity of actions and an abuse of court process. The appellant was clearly undeterred by the repeated setbacks with which her exertions were met in the superior courts of the Republic of Zambia. Consequently, she decided to step out of the judicial arena by turning to the Executive sphere where she invoked the intervention of the Lands Tribunal, a quasi-judicial dispute-resolution forum where she presented her complaint on 17th October, 2011 pursuant to Section 9 of the Lands Tribunal Act No. 39 of 2010. This complaint was, in essence, structured in the following terms: “I am the legal owner of property number 441/8137 or house No. 110, Helen Kaunda (Lusaka) and I am seeking assistance of this court to establish how my title deed for the above mentioned property changed ownership from my name to Esther Kanengoki and how the purchase happened in the face of a caveat. I am aggrieved as the legal owner of the property because the change of ownership of [the] property to Esther Kanengoki without my knowledge and consent... has deprived me of the enjoyment of the property as the property was used as a guest house... [I have lost] business from the time it was handed over to me by the bailiffs following an execution...” The appellant swore what was expressed to be an Affidavit in support of her complaint as set out above, the gist and substance J10 of which was a repetition of what she had asserted in her complaint. In effect, the appellant sought to have the Tribunal below establish how the 2nd respondent had managed to purchase the property when the same had been both the subject of litigation in the High Court as well as a caveat which had been entered by herself prohibiting any dealings in relation to the same. The 1st respondent reacted to the appellant’s complaint by filing an opposing affidavit in which it confirmed, among other things, that the appellant had lodged a caveat in respect of the property but that the lodging of the caveat in question had been legally ineffectual given that, at the time when the same was lodged, the appellant happened to have been its legal owner. It was further deposed in the 1st respondent’s affidavit opposing the appellant’s complaint that ZANACO had exercised its legal rights as mortgagee in respect of the property by way of selling the same for the purpose of addressing the appellant’s indebtedness to ZANACO. The 1st respondent also confirmed in the same affidavit that, as far as its records were concerned, the property in question had been sold and was legally owned by the 2nd respondent. On 21st November, 2011, that is, before the appellant’s complaint which we adverted to a short while ago could be heard by the Tribunal, the 2nd respondent launched a pre-emptive strike in the nature of an application to strike out the appellant’s complaint for being vexatious and/or an abuse of court process. This application was founded on Section 14 of the Lands Tribunal Act and was supported by an affidavit which was sworn by the 2nd respondent herself. In her said affidavit, quite apart from confirming that she had purchased the property in question from ZANACO as mortgagee following the conclusion of a mortgage action which ZANACO had instituted against the appellant as we revealed early on in this judgment, the 2nd respondent made the following key depositions: (a) That, instead of appealing to the Supreme Court against the judgment by Chulu, J (which had sanctioned the sale of the property to her - the appellant - by ZANACO), the appellant had opted to commence a fresh action under Cause 2005/HP/0893 which Cause His Lordship, Mwanamwambwa, J (as His Lordship then was) dismissed on 26th November, 2008 as we noted in the earlier part of this judgment; J12 (b) That, following the dismissal of the fresh action which we have referred to in the preceding paragraph, the appellant returned to the High Court Cause 2002/HP/0400 in which Chulu, J had entered judgment and successfully launched an appeal against that judgment. As of the date when the 2nd respondent was mounting her pre-emptive application in the Lands Tribunal as earlier noted, the appellant’s appeal had not been determined; (c) That, as the subject matter of the appellant’s complaint before the Lands Tribunal had been adjudicated upon in the High Court and in respect of the same facts, it was not competent for the Tribunal to entertain the subject complaint and that the launching of the action by the complaint constituted an abuse of court process, multiplicity of actions and forum shopping. The Lands Tribunal was accordingly urged to strike off the whole application. The Lands Tribunal proceeded to hear the 2nd respondent’s pre-emptive application during which hearing the appellant denied having abused the process of the court. In her further submissions before the Tribunal, the appellant alleged that the issue which she had raised before the Tribunal had neither been raised nor adjudicated upon before any court of law. The appellant also insisted before the Tribunal that it was within its power to cancel J13 a certificate of title to land which had been procured in circumstances which pointed to fraud. In its Ruling, the Tribunal recounted the numerous applications which the appellant had previously mounted before the High Court in respect of the same subject matter. The Tribunal also recounted the Hon. Mwanamwambwa, J (as the learned Deputy Chief Justice then was)’s Ruling in the fresh cause being 2005/HP/0893 which we referred to early on in this judgment. In particular, the Tribunal recalled that Hon. Mwanamwambwa, J had observed in his judgment that the property which constitutes the subject matter of this judgment had been the subject of three court actions before three different judges and that this fact had been acknowledged by the appellant herself. After recounting the full history of the matter and relating the same to the evidence and submissions which had been placed before it, the Tribunal concluded that the issues which constituted the subject matter of the complaint which the appellant had launched in the Lands Tribunal had been conclusively determined (by Mwanamwambwa, J) in High Court Cause 2005/HP/0893. The Tribunal then went on to review a number of our decisions J14 including Development Bank of Zambia & Another v. Sunvest Limited & Another1; The Registered Trustees of the Archdiocese of Lusaka v. Office Machines Limited2; Kelvin Hang’andu v. Webby Mulubisha3 and B. P. Zambia PLC v. Interiand & Motors Ltd4 and drew the further conclusion that the appellant had engaged in forum shopping and was, accordingly, guilty of having abused the process of the court. The Tribunal also expressed the firm and settled view that the complaint which the appellant had launched in that forum was frivolous and vexatious and that the same was liable to be dismissed with costs on the basis of Section 14 of the Lands Tribunal Act. The appellant was, yet again, displeased and dissatisfied with the determination of the Lands Tribunal and decided to appeal to the court below on the basis of 14 grounds. These grounds were expressed in the following terms: “GROUND 1 The Lands Tribunal members erred in fact and law when it dismissed the complaint as being frivolous and vexatious when it did not hear the matter to establish the facts before it to rule that the complaint was vexatious. GROUND 2 The Lands Tribunal members erred in fact and law when it dismissed the main complaint as the complaint was already J15 partially heard through an interlocutory application and the complaint had directory orders which were not contested by the respondents leading to application for leave to cite them for contempt of court. GROUND 3 The Lands Tribunal members erred in fact and law by relying on authorities only without establishing the facts about the complaint and ignoring the complaint that was before it. GROUND 4 The Lands Tribunal members erred in fact and law by not hearing the complaint without establishing who had the legal right to the property. GROUND 5 The Lands Tribunal members erred in law and fact by ignoring to establish whether the parties to the complaint were the same and why the 2nd Respondent was joined as a 2nd Respondent. GROUND 6 The Lands Tribunal members erred in fact and law for ignoring a judgment, and Writ of Possession and an execution which was made by the Court through the Sheriff’s Office. GROUND 7 The Lands Tribunal members erred in law and fact by not establishing when the 2nd Respondent obtained the purported Title Deeds. GROUND 8 The Lands Tribunal members erred in law and fact by not establishing how the Caveat was removed without a court order and whether it was an illegal caveat having been registered and paid for and how transaction of change of ownership happened in J16 the face of a caveat. GROUND 9 The Lands Tribunal members erred in fact and law by hearing the matter in the absence of the 1st Respondent being the key respondent in the matter. GROUND 10 The Lands Tribunal members erred in fact and law by ignoring its mandate and its functions as per Lands Tribunal Act of 2010. GROUND 11 The Lands Tribunal members erred in law and fact by ruling [that] the contempt proceedings were dismissed by Hon. Judge S. M. Mulenga of the High Court. GROUND 12 The Lands Tribunal members erred in fact and law when it contended that there was no affidavit in opposition to the application to dismiss the complaint when it established that the Respondent was not served with any document by the Respondents and there was no affidavit of service on Record. GROUND 13 (The members in law and in fact has they ignored the application to enter Default Judgement due to none filling of affidavit in opposition to the complaint.) (N. B: Ground quoted as presented) GROUND 14 The Lands Tribunal members erred in law and in fact by dismissing the complaint when there was not on record a defence or affidavit in opposition to the complaint or in opposition to the Interim Injunction.” J17 The court below considered the appellant’s grounds of appeal in the context of the submissions and arguments which were placed before that court by or on behalf of the parties and opined that its determination of the appeal which had been thrust upon it was to turn on how it was going to resolve the issue of whether or not the complaint which the appellant had mounted in the Lands Tribunal was res judicata. The learned judge then proceeded to review a number of authorities around the doctrine of res judicata, including our very own and oft-quoted decision in Bank of Zambia v. Tembo and Others5 and came to the conclusion that the Lands Tribunal could not be faulted for having arrived at the decision which it had arrived at when it dismissed the appellant’s substantive application. In reaching this decision, the court below reasoned that it would have been improper and incompetent for the Lands Tribunal to proceed to hear the appellant’s complaint when its subject matter had been determined by the High Court and the Supreme Court. In the view which the court below took, as the crucial question touching upon the ownership of the property in question had been J18 conclusively resolved by courts of competent jurisdiction, it would have been wholly incompetent for the Lands Tribunal to re-open the same subject. The court below also determined that the Lands Tribunal was perfectly entitled to hear the 2nd respondent’s pre­ emptive application notwithstanding that some proceedings relating to the filing of the complaint in the Tribunal had been initiated. In sum, the lower court dismissed the appellant’s appeal with costs. The appellant was not satisfied with the determination of the judge below and has now escalated her grievance to this ultimate court. In doing so, the appellant has constructed seven (07) grounds of appeal which have been presented in the memorandum of appeal as follows: “GROUND 1 The Learned trial Judge erred in law and in fact by ignoring the fact that the tribunal did not hear the matter for her to rely on the Judgment of the Tribunal as facts of the case were not heard by the Tribunal to establish whether the case was vexatious and an abuse of court process. GROUND 2 The Learned trial Judge erred in law and in fact to dismiss the appeal as the Respondents did not produce any documentary J19 evidence showing proceedings of any matter in any court between the 1st Respondent and the appellant. GROUND 3 The Learned trial Judge erred in law and in fact by ignoring the fact that the parties in this matter were different especially the 1st Respondent. GROUND 4 The trial Judge erred in law and in fact by ignoring all the evidence that was put before court in helping the court to establish that the matter that went to the tribunal was not vexatious and an abuse of court process. GROUND 5 The Learned trial Judge erred in law and in fact by failing to recognize the functions of the tribunal as per Lands Tribunal Act of 2010. GROUND 6 The Learned trial Judge erred in law and in fact by failing to establish the fact that the Tribunal is a court of the ordinary people and it can not decide matters on technicality without hearing as it is not bound by rules of evidence as is applied in Civil proceedings. GROUND 7 The learned trial Judge erred in law and in fact by awarding costs to the Respondents in a matter which was not heard in the tribunal.” At the hearing of her appeal, the appellant informed us that she had filed Heads of Argument to support her grounds of appeal and that she was relying upon those filed Arguments. J20 In respect of the first ground of appeal, the appellant’s short argument was, in effect, that the court below ought not to have relied upon the Ruling of the Lands Tribunal because the Tribunal had not heard the matter for which its jurisdiction had been invoked by the appellant. With respect to the second ground of appeal, the appellant’s equally short argument was to the effect that no documentary evidence was placed before the court below by the respondents to demonstrate that the matter which had been the subject of proceedings in the Lands Tribunal had been the subject of other court proceedings. Under ground three, the appellant canvassed an argument which was quite clearly connected to the second ground and which, in essence, was to the effect that there had been no proceedings involving herself and the 1st respondent in particular, in relation to the transfer of the title to the property to the 2nd respondent, in any court other than the ones which were thwarted via the pre-emptive objection which we earlier mentioned. With respect to the fourth ground of appeal, we have been at pains to appreciate or fathom the gist of this ground beyond the J21 appellant’s complaint that the lower court had ignored evidence which had (allegedly) been placed before it and which had (allegedly) suggested that the matter which the appellant had taken to the Lands Tribunal by way of her (thwarted) complaint had neither been vexatious nor did the same constitute an abuse of court process. Notwithstanding the difficulty which we have alluded to above, what seems to have come out more clearly from the appellant’s oral submissions around the fourth ground of appeal was an assertion that the judgment in default of appearance and defence which the Deputy Registrar entered in her favour in Cause 2005/HP/0893 on 28th November, 2007 had never been disturbed. The appellant maintained the aforestated position even when her attention was drawn to the fact that on 25th November, 2008, the Hon. Mr. Justice M. S. Mwanamwambwa (as His Lordship the Deputy Chief Justice then was) delivered a Ruling in which the dismissal of Cause 2005/HP/0893 by the Deputy Registrar (Hon. Musona) was affirmed. A further argument which the appellant advanced in the context of the fourth ground of appeal was that title in the property in question ought not to have been transferred to the 2nd respondent owing to the existence of a caveat on the same at her J22 instance. The appellant’s short argument around her fifth ground of appeal was that, in terms of its enabling statute, the Lands Tribunal was established for the purpose of hearing and determining disputes relating to land such as her own and that the Tribunal’s refusal to determine her complaint constituted a breach of the statutory functions which the law assigns to the Tribunal. The appellant’s brief and perspicuous argument around her sixth ground of appeal was that it was an error for the court below to have supported the thwarting of her complaint on the basis of what she described as a technicality. According to the appellant, the Lands Tribunal was created and exists for the purpose of resolving disputes among poor people \vho do not know the law’ and who, consequently, do not expect their cases to be decided on the basis of technicalities. In relation to the seventh and last ground of appeal, the appellant faulted the court below for having condemned her in costs. The appellant reasoned that the granting of costs in favour J23 of the respondents was, to use her own words, "... unjustifiable, harsh and wrong in principle” because the respondents neither appeared in the Tribunal and the lower court nor did they file any documents to warrant an award of costs in their favour. The appellant accordingly invited us to allow her appeal and direct the Lands Tribunal to proceed and determine the complaint whose hearing and determination were thwarted by the preliminary objection whose outcome became the subject of the contest in the court below. For the record, we wish to note that neither of the two respondents attended the hearing nor did either file any Arguments by way of reacting to the appellant’s arguments. We hasten to begin our reflections by recording our gratitude to the appellant for her arguments in support of her grounds of appeal in this appeal. Although the appellant had elected to segregate her complaints and grievances in this appeal into what she disparately packaged as seven (07) grounds, in essence these grounds carry and convey no more than two overarching themes. The first such theme, as presented via the first four grounds, was that the court J24 below erred and misdirected itself by supporting the Tribunal’s Ruling and taking the view that the appellant had been engaged in vexation and abusing the process of the court when, in the appellant’s view, the complaint which she had presented in the Tribunal had not been heard and no documentary evidence had been presented in the lower court to demonstrate that proceedings involving herself (the appellant) and the respondents had been conducted in any court. The second theme which emerged from the fifth and sixth grounds of appeal revolved around the appellant’s complaint that the court below did not properly direct itself with respect to the nature and jurisdiction of the Lands Tribunal and its (supposed) mandate to resolve disputes involving poor people who are not lettered in the law in a non-technical and non-legalistic manner. In her judgment, the learned judge in the court below traced the genesis of the grievance which the appellant had escalated to her court, by way of appeal from the Lands Tribunal to ZANACO’s mortgage action being Cause 2002/HPC/0400 against the appellant, which we identified very early on in this judgment. We also observed that that mortgage cause had yielded a judgment J25 which was favourable to ZANACO and which the appellant had not contested. It will also be recalled from our earlier narrative in this judgment that ZANACO subsequently secured the enforcement of that judgment. The judge nowunder attack did, in her judgment, call to mind the events which followed the entry of the ZANACO judgment in Cause 2002/HPC/0400 by Chulu, J on 10th December, 2003. For the removal of any doubt, those events included the fact of ZANACO having advertised and proceeded to sell the property which we earlier identified to the 2nd respondent following the appellant’s failure to redeem the mortgage sum for which the same had been availed to secure the appellant’s borrowing as we confirmed at the beginning of this judgment. The court below further noted that as the events which had followed the entry of that ZANACO judgment had culminated in ZANACO foreclosing upon the property before its eventual sale to the 2nd respondent, the appellant could no longer lay any valid or lawful claim to that property. To support this position, the judge quoted the following passage at paragraph 844 of Halsbury’s Laws of England: J26 “By permitting foreclosure, the court removes the stop it has itself put on; the property belongs to the mortgagee absolutely, not only for the mortgage term, but also for the mortgagor’s whole interest... In a case of a legal leasehold mortgage, the nominal reversion vests in the mortgagee and the mortgage sub-term is merged.” Having revealed its mind upon the appellant’s status in relation to the mortgaged property, the court below turned to consider the appeal which had been escalated to that court and came to the conclusion that the Lands Tribunal had properly exercised its jurisdiction under Section 14 (1) of its enabling statute which enacts as follows: “If the Tribunal determines that any application to the Tribunal is frivolous or vexatious, it shall dismiss the application and may order the applicant to pay the applicant’s costs, that of the other party and that of the Government in connection with the proceedings.” In supporting the Tribunal’s exertions, the court below noted that this quasi-judicial body had properly summoned the principles around the meaning of frivolity’ and 'vexation’ in the context of legal proceedings as embedded in Order 18/ 19 / 16 of the White Book. The appellate court also endorsed the Tribunal’s reliance upon the doctrine of res judicata as it was applied in our decision in Bank of Zambia v. Tembo & Others5. J27 The court below concluded its review of the Ruling of the Lands Tribunal by making the following observations: “In my considered view, the Lands Tribunal cannot be faulted [for] deciding as it did. There was no need for it to determine the complaint before it [given that] a court of competent jurisdiction had dealt with the matter with finality and stripped the appellant of the beneficial interest she had in the property in question. The complaint was manifestly frivolous and vexatious and the Tribunal was on firm ground to summarily dismiss it on those grounds ... [The] High Court and Supreme Court had dealt with the matter and it was incompetent for the Tribunal to re-open the matter and determine ownership in the appellant’s favour.” The court below finally expressed her support for the position which the Hon. Mwanamwambwa, J (as his Lordship then was) took in Cause 2005/HP/0893 (which had been instituted by the appellant) to the effect that ZANACO’s interest (as mortgagee of the property) had been conveyed to the 2nd respondent and that both ZANACO and the 2nd respondent had been parties to that Cause, the final outcome of which was an acknowledgement of the 2nd respondent’s legal interest in the property which could not have been the subject of fresh proceedings in the Lands Tribunal. We must say, without the slightest equivocation, that the court below correctly pronounced itself upon the appellant’s J28 complaints and grievances as she had packaged them in her first four grounds of appeal. For the removal of any doubt, the appellant laid the substance of the first four grounds of her appeal before the court below. Our examination of the record relating to this appeal revealed a litany of court processes which the appellant had mounted for the purpose of frustrating ZANACO’s enjoyment of the fruits of the judgment which Chulu, J had pronounced in the Bank’s favour. There can be no doubt that the appellant did not want ZANACO to enjoy the benefit of the property which the appellant had availed to secure her borrowing. During the hearing of the appeal, the appellant repeatedly made reference to the judgment in default of appearance and defence which was entered in her favour on 28th November, 2007 under the hand of the Deputy Registrar in Cause 2005/HP/0893 in which she was the 1st Plaintiff while ZANACO and the 2nd respondent were the 1st and 4th Defendants respectively. According to the appellant, that judgment served to restore ownership of the property to her after the same had been the J29 subject of Chulu, J’s judgment. As we earlier pointed out in this judgment, Cause 2005/HP/0893 (upon which the appellant’s illusion that ownership of the property in question was restored to her via the default judgment earlier mentioned had been riding) was swept away by the Hon. Mr. Justice Mwanamwambwa’s judgment of 25th November, 2008. For the avoidance of any doubt, the Hon. Mr. Justice Mwanamwambwa upheld the earlier Ruling of the then Hon. Deputy Registrar, Mr. Musona dated 4th June, 2008, who had dismissed Cause 2005/HP/0893 in its entirety for having constituted "... an abuse of court process in that the action [was] premised on the same facts, same disputed property and same parties as those in the earlier matter (namely, Cause 2002/HPC/0400) upon which the High Court and the Supreme Court [had] since adjudicated upon.” As earlier noted, Hon. Mr. Justice Musona, then Deputy Registrar, was upheld on appeal by the Hon. Mr. Justice M. S. Mwanamwambwa. Among the many crucial observations which the Hon. Mr. Justice Mwanamwambwa made in his detailed Ruling of 25th November, 2008 were the following (at pages R34-R35): “[This] matter is all about sub-division 441 of Stand No. 8137, Helen Kaunda, Lusaka. The dispute between the plaintiff (now appellant) and ZANACO over the property was decided by Chulu, J in J30 [December, 2003] under Cause 2002/HPC/0400. Judgment was passed in favour of ZANACO. The plaintiff failed to defend that mortgage suit. She failed to redeem the mortgage even after she was granted more time. If she was not happy with that decision the correct [step] was for her to appeal to the Supreme Court. She failed to appeal. The 4th defendant (now 2nd respondent) bought the property in dispute, bonafide, for value and without notice. In my view... it is improper for the plaintiff to commence court proceedings against ZANACO or anybody else, over the disputed property.” After reviewing a number of decisions of this court which condemned multiplicity of actions and abuse of court process such as Development Bank of Zambia & Another v. Sunvest Ltd & Another1, Zambia Breweries v. Central and Provincial Agencies6, B. P. Zambia PLC v. Interiand Motors Limited7, Mukumbuta & 4 Others v. Lubinga & 3 Others8, Mr. Justice Mwanamwambwa said: “The dispute between the 1st plaintiff and ZANACO over sub­ division 441 of Stand 8137, Helen Kaunda, Lusaka was heard about three times by Hon. Judge Chulu under Cause 2002/HPC/0400, has been heard by Hon. Judge Gregory Phiri and is still pending under Cause No. 2005/HP/0248, by Hon. Judge Kabalata and this court under Cause No. 2005/HP/0893. It has also been dealt with by Deputy Registrar, E. Musona under Cause 2005/HP/0893 and Cause No. 2007/HP/0762. The time repeatedly spent by the High Court over this dispute should have been better spent on [other] deserving matters. I am aware that the same dispute has been dealt with about four (04) times by the Supreme Court - twice by Hon. Judge Chitengi in Chambers and once by Hon. Judge F. Mumba in Chambers and once by the full bench in open court.” Quite apart from what has been highlighted above, the appellant again hauled ZANACO before this court in Appeal No. 133 of 2005, the judgment of which was rendered on 8th January, 2016. For completeness, the appellant’s appeal was dismissed. As we intimated not long ago, we do not have the slightest doubt in our minds that the appellant has been abusing the process of the court in the full sense in which this expression is used in Order 18/19/15 of the White Book. This Order says: “The term ‘an abuse of the process of the court’ connotes that the process of the court must be used bonaflde and properly and must not be abused. The court will prevent the improper use of its machinery and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.” The editors of the White Book have, under Order 18/19/16 cited ‘re-litigation’ as one instance which amounts to an abuse of the process of the court. For the avoidance of doubt, that Order states: “It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate [an issue] after the self­ same issue has been tried and decided by the court.” J32 The principle which Order 18 Rule 19, sub-rules 15 and 16 of the White Book embodies was applied by Ngulube, C. J in B. P. Zambia PLC v. Interiand Motors Limited9 where the learned Chief Justice said: “For our part, we are satisfied that, as a general rule, it will be regarded as an abuse of process if the same parties re-litigate the same subject matter from one action to another or from judge to judge. This will be so especially when the issues would have become re judicata or when they are issues which should have been resolved once and for all by the first court as enjoined by Section 13 of the High Court Act, Cap. 27. In terms of this Section and in conformity with the court’s inherent power to prevent abuses of its process, a party in dispute with another over a particular subject should not be allowed to deploy his grievance piecemeal in scattered litigation and keep on hauling the same opponent over the same matter before various courts. The administering of justice would be brought into disrepute if a party managed to get conflicting decisions from two or more different judges”. In Allan Kandala v. Zambia National Commercial Bank PLC10, Wood, J (as His Lordship then was) had occasion to deal with the principle of res judicata and multiplicity of actions when His Lordship adopted the following observations by Jack, J in Aaron v. Shelton11: “Where a given matter becomes the subject of litigation, and of adjudication by a court of competent jurisdiction, the court J33 requires the parties to that litigation to bring forward the whole case, and it will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not.” Turning to the matter before us, the appellant cannot, clearly, escape from the conclusion that she has been abusing the process of the court. Indeed, the appellant has also been guilty of vexation, frivolity and the promotion of multiplicity of actions. We are also clear in our minds and entertain no doubt that both the court below as well as the Tribunal were correct in reaching the conclusions which they reached. As the Hon. Mr. Justice Mwanamwambwa lamented in the Ruling involving the same appellant which we earlier referred to, the appellant has consumed so much of the court’s resources over a very extended period of time which could have been directed towards the needs of the countless other litigants who were waiting for their turn to access the services of the court system. As we said in Emmanuel Mponda v. Mwamba Mulenga & Two Others12, adopting the words of Lord Woolf, one time Chief Justice of England and Wales: J34 “Judges are required to ensure that a case only uses its appropriate share of the resources of the court.” It is a stubborn and notorious fact that court resources are limited as demand always outstrips supply. It is also no rocket science that when a single litigant consumes a disproportionately huge chunk of the court’s resources, other litigants are unduly prejudiced and such prejudice undermines the general administration of justice. It is for this reason that laws such as Section 16 (1) of our High Court Act, Cap. 27 exist in order to forestall abuse of the court machinery by persons who, - “... habitually and persistently and without any reasonable ground [institute] vexatious legal proceedings in [any] court and whether against the same person or against different persons....” By requiring such persons to secure the leave of the court before they can institute any legal proceedings against anyone. It is a wonder and a matter of profound regret indeed that useful legal provisions such as the one we have quoted above have just remained in cold storage because of apparent ineptitude and lack of vigilance on the part of prospective beneficiaries of such and similar laws which exist for the purpose of forestalling possible abuse of the machinery of justice. J35 We have been deliberately elaborate in our interrogation of the issues at play in the first four grounds of appeal not least because the appellant appeared in person and showed no sign that her exertions both in the court below and in this court amounted to nothing beyond flogging a dead horse. In sum those four grounds stand dismissed. With regard to the fifth and sixth grounds of appeal which revolve around the raison d’etre of the Lands Tribunal, all we are prepared to say is that neither the court below nor the Lands Tribunal did or omitted to do anything which suggested, even faintly, that the two adjudicative fora were not alive to the nature adjudicative mandate and, indeed, raison d’etre of the Lands Tribunal. In making the foregoing observations, we have not lost sight of the fact that, in pronouncing the Ruling which became the subject matter of the appeal in the court below, the Tribunal appropriately summoned the powers which Section 14 of the Lands Tribunal Act No. 39 of 2010 invests in that quasi-judicial body. A final point which we feel tempted to make in the context of one of the issues which the appellant canvassed around the fifth and sixth grounds of appeal is that, as Section 14 of the Lands J36 Tribunal Act forms part of the jurisdictional mandate of the Tribunal, its invocation cannot necessarily serve to negative its essential characteristics as an informal, speedier and cheaper medium of dispute resolution. Grounds 5 and 6 stand dismissed. With respect to the last ground of appeal which revolves around the condemnation of the appellant in costs, the law is well settled that the issue of awarding costs lies in the discretion of the court. [However], there are certain guidelines which [a court] must follow in exercising that discretion. A successful party will not normally be deprived of his costs unless there is something in the nature of the claim or in the conduct of the party which makes it improper for him to be granted the costs”: Patel v. Patel13 Applying the principles which we enunciated in Patel v. Patel13, it is our clear and settled view that the lower court had no other way of dealing with the issue of costs than to condemn the appellant with respect to the same. Besides, in her case (the appellant), there was an additional justification for mulcting her in costs in the sense that she had been found guilty of having abused the process of the court. As we said in Muyawa Liuwa and Judicial Complaints Authority & A-G14: “...ordinarily, we would not order costs against a lay person but in this case, the appellant has abused the court process relentlessly J37 yet knowing that his case has already been adjudicated upon. We cannot encourage such conduct as it is obviously costly to the respondent and to this court. Therefore, we order that the appellant bears the costs of this appeal.” (per: Muyovwe, JS) Speaking for ourselves, and, consistent with what Section 14 of the Lands Tribunal Act envisages, we were inclined to condemn the appellant not only in costs relating to this appeal but all the other costs which that statutory provision contemplates. In short, the appellant has been spared from the additional cost burden which we were inclined to inflict upon her had the two respondents taken any steps to contest this appeal which, in any event, we hereby dismiss in its entirety. For the avoidance of doubt, we uphold the court below on the issue of costs up to that court. A. M. WOOD SUPREME COURT JUDGE C. KAJIMANGA SUPREME COURT JUDGE M. MUSONDA, SC SUPREME COURT JUDGE