Seliya Ngoma (Suing through Attorney Ephraim Ngoma) v Faides Nambela and Ors (APPEAL NO. 110/2019) [2020] ZMCA 199 (29 May 2020)

IN THE COURT OF APPEAL OF ZAMBIA: HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 110/2019 BETWEEN SELIYA NGOMA (Suing through her Attorney Ephr ()r APPEAL AND FAIDES NAMBELA LUSAKA CITY COUNCIL REGINA MWANZA . RESPONDENT 2ND RESPONDENT 3 RESPONDENT CORAM: KONDOLO, MAKUNGU AND SIAVWAPA, JJA On 22nd and 29th May 2020 FOR THE APPELLANT: IN PERSON FOR THE 1ST RESPONDENT: NO ATTENDANCE FOR THE 2ND RESPONDENT: DIRECTOR OF LEGAL SERVICES FOR THE 3RD RESPONDENT: LEGAL AID BOARD JUDGMENT SIAVWAPA, JA, delivered the Judgment of the Court. Cases referred to: 1. Monica Siankondo v Frederick Ndenga SCZ Judgment No 3 of 2005 2. Nkhata and 4 Others v the Attorney-General (1966) Z. R. 124 (C. A) 3. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z. R. 172 (S. C) 4. Bird v Summerville 1961 (3) SA 194 (A). 5. Brenda Mwale v Bwalya Daka App. No. 48 of 2008. INTRODUCTION This is an appeal against the Judgment of the High Court presided over by Hon. Mrs. Justice S. Kaunda Newa delivered December, 2018 in favour of the 1st Respondent. on 7th 2 BACKGROUND The property which is the subject of the dispute is a semi- detached structure housing two families with the Appellant occupying one of the two; called house number 1488D. The other side was called house number 1488B and apparently occupied by one Ruth Nambela, now deceased. The two appear to have had tenancy agreements with the 2'' Respondent to their respective portions of the property. In 1996, Ruth Nambela, the tenant of house number 1488B, died intestate and nothing is known of what happened to the house until 29th March, 2000 when letters of offer were issued in the names of Ruth Nambela and Seliya Ngoma in respect of house number 1488B and house number 1488D respectively. We wish to note here that we observed serious disparities in the two offer letters although issued on the same date. The first disparity is that although they purport to be authored by the same officer, the signatures are manifestly different. Secondly, in one the author is designated as Acting Director of J2 Legal Services while in the other he is designated as the Director of Legal Services. This raises questions as to the authenticity of the documents. It however, transpired that on the receipt for payment of fees for issuance of the Certificate of Title dated 26th May 2011, exhibited at page 114 of the Record of Appeal, the property the Appellant bought is described as 80/7A/ 19174 Matero. Subsequently, Certificate of Title number 21782 dated 2nd February, 2012, issued to the Appellant, bears the same description of the property. This is in contrast with the Certificate of Title issued in the name of Faides Nambela, number 21107 dated 1st November, 2010 which is described as 80B/7A/ 19174. The difference is that whereas the 1st Respondent's Certificate of Title corresponds with the portion of the property offered to Ruth Nambela, being house number 1488B, the Certificate of Title issued to the Appellant covers both portions namely, the 1488D offered to her and the 1488B offered to Ruth Nambela. This is the genesis of the dispute which caused the 1st Respondent to seek legal redress before the Local Court in April, 2010. The Local Court passed Judgment in favour of J3 the Appellant as evidenced by the Certificate of Judgment exhibited at page 70 of the Record of Appeal. The loss in the Local Court prompted the 1st Respondent to file a Notice of Complaint before the Lands Tribunal in December, 2014 where she sought the following remedies; (i) An order that house number 1488B and house number 1488D are semi-detached houses and not a single unit as purported by the 2nd Respondent (now Appellant). (ii) An order that house number 1488B Matero, Lusaka belongs to the estate of the Ruth Nambela. (iii) An order that the 2nd Respondent vacates house number 1488B Matero, Lusaka. (iv) An order for cancellation of the Title issued by the 1st Respondent in favour of the 2nd Respondent. (v) Any other relief the Tribunal may deem fit. (vi) Costs. DECISION OF THE LANDS TRIBUNAL Before the hearing of the matter, one Regina Mwanza was joined to the action as the third Respondent. This was on account that she had bought house number 80B/7A/ 19174 from Faides Nambela as per the contract of sale exhibited at page 85 of the Record of Appeal. J4 Having considered the affidavit and documentary evidence as well as arguments before it, the Tribunal agreed with the complainant (1st Respondent herein) and granted all the remedies sought by her. The Judgment was delivered on 24t April, 2017 and the Appellant herein registered her displeasure with the outcome by swiftly filing a Notice of Appeal before the High Court. By amended Notice of Appeal by order of the Court, filed into Court on 7th August, 2018, the Appellant advanced seven grounds of Appeal, namely; 1. The Lands Tribunal erred and misdirected itself both in law and fact by ignoring the evidence on record which revealed that this matter is a res-judicata, multiplicity of actions and abuse of court process the same having been adjudicated upon by the Local Court and the matter was not before it by way of appeal although it is not an appellant Court relating to appeals from Local Court. 2. The Lands Tribunal erred and misdirected itself both in law and fact by ignoring the fact that it lacks jurisdiction to overrule the decision of the Local Court over the property in dispute. 3. The Lands Tribunal erred and misdirected itself both in law and fact by ignoring the evidence on record which revealed that the 1st and 2nd Respondents were engaged in desperate manoeuvres and sharp practices which resulted J5 into the 1st Respondent acquiring a Certificate of Tittle by fraud. 4. The Lands Tribunal erred and misdirected itself both in law and fact by holding that the 1st Respondent's Certificate of Title is conclusive evidence of ownership when the evidence on record reveals that it was obtained by fraud and under Section 33 and 34 of the Lands and Deeds Registry Act Cap 185 of the Laws of Zambia, any Certificate of Title obtained by fraud can be cancelled and under Section 4(g) of the Lands Tribunal Act N6.39 of 2010, the Tribunal has jurisdiction to cancel any Certificate of Title obtained by fraud. 5. The Lands Tribunal erred and misdirected itself both in law and fact by holding that the property in dispute forms part of the estate of the late Ruth Nambela when the evidence on record clearly reveals that at the time of her death the property was not offered to her and had not purchased it. 6. The Lands Tribunal erred and misdirected itself both in law and fact by ignoring the fact that the 1st Respondent sought equity with dirty hands and by further ignoring the fact that her intention was to use the law and the court to benefit from her fraud act in order to acquire the property. 7. The Lands Tribunal erred and misdirected itself both in law and fact in condemning the Appellant into costs when J6 the dispute herein was caused by the 1st and 2' Respondents through their dishonest dealings. THE HIGH COURT DECISION On grounds 1 and 2, the learned Judge found that the Local Court had no jurisdiction to hear the matter, not on account of the K50.00 value of property prescribed by the Local Courts Act but for the reason that the property was titled and only the Lands Tribunal and the High Court have jurisdiction in titled property as provided for by the Lands and Deeds Registry Act and the Lands Tribunal Act No. 39 of 2010. The Court accordingly held that the Judgment of the Local Court was null and void and the matter was not res-judicata. On grounds 3, 4 and 6 which allege fraud on the part of the 1st and 2nd Respondents leading to the issuance of the Certificate of Title to the 1st Respondent, the learned Judge held that the Lands Tribunal erred by not hearing evidence in support of the fraud allegations as provided for under rule 12(2) of the Lands Tribunal Rules but proceeded on affidavit evidence instead. The learned Judge nonetheless found solace in the fact that the Tribunal had found no letter of offer of house No. 1488B to the Appellant but that the 2nd Respondent erroneously gave it to the Appellant. J7 She upheld the Tribunal's finding that house 1488B was offered to the 1st Respondent while house number 1488D was offered to the Appellant. The learned Judge also upheld the Tribunal's finding that in the absence of proof of fraud, the Certificate of Title issued to the 1st Respondent was conclusive evidence of ownership. On ground 5, which attacks the Tribunal's finding that house number 1488B formed part of Ruth Nambela's estate, the learned Judge, conceded that the property could not by law form part of Ruth Nambela's estate as the offer was made after her death. The learned Judge however, said that the Certificate of Title could not be invalidated because the allegations of fraud were not proved. On statute bar on account that the dispute arose in 2000 when the letter of offer was issued, the learned Judge found 1st November, 2010 when the that the dispute in fact arose on Appellant was issued with the Certificate of Title incorporating house number 1488B. On ground 7 which attacks the Tribunal's granting of costs to the 1st Respondent, the learned Judge found that costs, being in the Court's discretion, the Tribunal could not be faulted. J8 She further found that the law is to the effect that a successful party should not be deprived of costs unless there is something in their conduct warranting doing so. She accordingly dismissed the appeal in its entirety with costs to the Appellant (1St Respondent herein). 5. THIS APPEAL The Appellant, being displeased with the outcome, lodged an appeal before us with leave having been granted in the Judgment of the Court below. She advanced the following grounds; 1. The Court below erred and misdirected itself both in law and fact by holding that Ruth Nambela was a tenant of the 2nd Respondent where there is no such evidence on record and the Court further erred by awarding the house in dispute to the 1st Respondent when Ruth Nambela died on 24th April, 1996, before the offer was made on 29th March, 2000. 2. The Court below erred and misdirected itself both in law and fact by assuming that the 1st Respondent commenced the proceedings in her personal capacity and not as an administrator when there is no evidence showing any other capacity than that of being an administrator upon which she claimed the property in dispute in the Local Court. J9 3. The Court below erred and misdirected itself both in law and fact by holding that Local Court had no jurisdiction to hear and determine a matter involving property on title when the evidence on record reveals that on 26th April, 2010 when the Local Court delivered its Judgment the property was not on title. 4. The Court below erred and misdirected itself both in law and fact by not ordering a trial despite holding that the Appellant in her affidavit had alleged fraud which requires to be proven through viva voce evidence and that the Lands Tribunal decided the matter via affidavit evidence and in view of the 2nd Respondent's letters contradicting each other. S. The Court below erred and misdirected itself both in law and fact by holding that the 1 s Respondent did not obtain the Certificate of Title by fraud in full view of evidence demonstrating fraud on part of the 1st and 2' Respondents. 6. The Court below erred and misdirected itself both in law and fact by holding that the 1st Respondent's claim arose on 1st November, 2010 when she was issued with a Certificate of Title and not 29th March, 2000 when the property was offered to the late Ruth Nambela and that the claim is not statute barred. 7. The Court below erred and misdirected itself both in law 1st Respondent had and fact by ignoring the fact that the J10 no capacity to sue over the property in dispute and the Court below further erred by focusing on the value of the house in dispute when the same was not in contention and did not form part of the estate of the late Ruth Nambela. 8. The Court below erred and misdirected itself both in law and fact by holding that there are two properties when the cardinal evidence demonstrates that there is one property on the ground and the Court below erred by ignoring the fact that there is no evidence on record demonstrating the period the Appellant and the late Ruth Nambela shared the rooms of house number 1488 Matero. 6 ARGUMENTS The Appellant filed heads of argument which, to a large extent, consist of quotations from the numerous cases she placed reliance on. It is argued that the Court below erred by holding that Ruth Nambela was the tenant of the 21 d respondent in the absence of any such evidence who died long before the offer was made to her. The Appellant has placed reliance on several cases but suffice to refer to that of Monica Siankondo v Frederick Ndenga(1 ) in which the supreme Court held that a house that had not been offered to the deceased before his death could not form part of the deceased's estate. ill The Respondents filed separate heads of argument which were brief and concise but similar. They argue that the Court below made findings of fact which are irreversible unless they fall within the parameters of the holdings in the cases of Nkhata and 4 others v the Attorney-General(2) and Wilson Masauso Zulu v Avondale Housing Project Limited(3). It was further argued that in the absence of proof of fraud, the 1st Respondent's Certificate of Title is conclusive evidence of ownership as per sections 33 and 34 of the Lands and deeds Registry Act Chapter 185 of the Laws of Zambia. We will be dealing with the arguments advanced by the parties in more detail as we consider the various grounds in this Judgment. 7 OUR JUDGMENT In considering ground one which challenges the holding by the Court below that Ruth Nambela was a tenant of the 2nd Respondent, we have noted that the learned Judge made that finding on the basis of the letter of offer which was in the name of Ruth Nambela. The 2nd Respondent also backed that position arguing that they issued the offer letter based on the records they held showing Ruth Nambela as the sitting tenant of house number J12 1488B, Matero. Based on that, we would not fault the learned Judge for finding as she did. We however, note one pertinent legal issue that pervades this finding of fact and the attendant arguments by both the 1St and 2nd Respondent. This is the basic law of contract formation. Granted that Ruth Nambela was a tenant in the house in issue prior to her demise in 1996, how did the law view the purported offer to Ruth Nambela on 29th March, 2000, close to four years after her death? Would the law hold that there was a valid offer to a dead person and would there be valid acceptance by a non offeree? Our perusal of the basic law of contract relating to offer and acceptance tells us that an offer can only be made to an intended offeree and only such offeree can accept it unless the offer is made to the world at large or indeed to alternate persons with one or the other capable of accepting it. The learned authors of Business Transactions Law, ninth edition; Robert Sharrock, Juta and Co Pty Ltd 2016, Cape Town at page 63 state as follows; "Only a person whom the offeror intended to accept may do so. If A makes an offer to B with the J13 intention that B and no one else should accept it, then B alone can accept. If C purports to do so, no contract is formed. The mere fact that, objectively it makes no difference to A whether he contracts with B or with C is not enough to create a contract with C." In this appeal, the facts and history of the case point to the fact that at the time of issuing the letter of offer, on 29th March, 2000, the clear intention of the 2nd Respondent was that only Ruth Nambela and no one else should accept it. This intention is fortified by the rules governing the sale of housing stocks by Government and quasi-government institutions. One of the qualifying criteria was that the houses were to be offered to sitting tenants. Ruth Nambela was the known sitting tenant and the letter of offer clearly states so in paragraph one as follows; "I wish to inform you that being the sitting tenant of the above mentioned House, the Council, pursuant to Presidential directive resolved to offer you House Number 1488B, Matero, Lusaka...." J14 The offer is very clear and specific to Ruth Nambela on qualifying criterion of being a sitting tenant. It follows therefore, that no other person could accept that offer. The first hurdle is that Ruth Nambela was dead and therefore, no longer qualifying as a sitting tenant. The offer itself was therefore made in error and therefore, null and void at law. Secondly, the 1st Respondent, regardless of her relationship to Ruth Nambela, could not accept the offer. As a matter of fact, the record shows that at the time of the offer, the 1st Respondent was not the administrator of the estate of Ruth Nambela because she was only granted the appointment on 3rd March, 2010 approximately ten years after the offer. So, she could not have accepted the offer as an administrator of the estate of Ruth Nambela. Ultimately, no contract was formed between the 1st Respondent and the 2'' Respondent for the sale of house number 1488B Matero, Lusaka. The principle is also illustrated in the case of Bird v Summerville when the Court stated as follows; (4) "In this case, B, who wished to sell his property, was informed by an estate agent that S was willing to buy it. B signed a written offer to sell, naming S as purchaser, and sent the document to him for his J15 signature. Not only S but also P signed the document (purported to be B's offer to sell). At the time of making the offer, B had not known of P's existence. The evidence showed that B would not be at any disadvantage if both S and P bought the property. Nevertheless, the Court held that B was not bound to sale with them because he had not intended that they should both accept the offer." We have considered the facts in the case before us and find that the only difference in terms of applying the principle is that the 2nd Respondent, who is the seller, did not adequately inform itself on the law. We also wish to state that the law is well settled now that without an offer, there is no entitlement to purchase property. This was the holding by the Supreme Court of Zambia in the case of Brenda Mwale v Bwalya Daka(5) when it stated that; "The Appellant was not entitled to purchase the house in dispute because no offer was made to her". We however take note that having not sufficiently acquainted itself with or having deliberately ignored the law, the 2' Respondent went ahead to issue a Certificate of Title to the 1St Respondent as administratrix. J16 We are mindful that a Certificate of Title shall not be cancelled unless there is proof of fraud to the requisite standard. We therefore, uphold the learned Judge below on her reliance on Sections 33 and 34 of the Lands and Deeds Registry to the effect that a Certificate of Title is conclusive evidence of ownership by the person in whose name the Certificate of Title is issued. Ground 2 is based on a misunderstanding of the learned 1st Respondent's basis of locus Judge's statement about the standi. It is clear from the reading of the Judgment that the learned Judge actually found that the 1st Respondent had commenced her action in the Local Court as administratrix of the estate of Ruth Nambela. The assumption by the learned Judge that the 1st Respondent had sued in her personal capacity was for the purposes of determining whether the Intestate Succession Act or the Local Courts Act was to be applied to determine whether or not the Local Court had jurisdiction to entertain the complaint. This ground therefore lacks merit. The third ground attacks the learned Judge on her finding that the Local Court lacked jurisdiction because the property was on title. This objection is based on the understanding that J17 I title started upon issuance of Certificates of Title to the Appellant and the 1st Respondent by the 2' Respondent in 2012 and 2010 respectively. This however, is not correct because prior to the sale, the 2' Respondent had title to the property. Upon sale, the land had to be surveyed for the purposes of issuing Certificates of Title to the purchasers of the two portions of the house namely; No. 1488B and 1488D. It therefore, remains a fact that at the time of commencing the action in the Local Court, the property was already on title with the previous owner or lessee being the 2'' Respondent. This fact is also confirmed by the Certificate of Title itself which grants the Appellant interest in the property as a sub- lessee or sub-tenant for the unexpired residue term of 99 years. We therefore find no merit in this ground and dismiss it accordingly. Grounds 4 and 5 are considered together as they attack the learned Judge's findings on the plea of fraud. We note in the Judgment that the learned Judge acknowledged that allegations of fraud were made by the Appellant against the 1st and 2nd Respondents. The learned Judge faulted the Lands Tribunal for not inviting viva voce evidence and for not J18 I ■ In this case, the Appellant's fraud allegation would not help her get house number 1488B even if proved on the principle that for one to be entitled there ought to be a definite offer and acceptance of the same by the claimant. The two grounds must equally fail for the above stated reasons. Ground 6 argues statute barring of the action for being brought too late in the day. The argument is that the cause of action arose in 2000 when the Appellant was offered the property. This argument is flawed because, according to the offer letter dated 29th March, 2000, as exhibited at page 105 of the Record of Appeal, the Appellant was offered house number 1488D on the same day Ruth Nambela was offered house number 1488B as shown in the offer letter exhibited at page 106 of the Record of Appeal. So in so far as the offer letters are concerned, there is no dispute between the two parties over the property because they were offered two different units of a semi-detached house which is on common-lease title as sub-division 80/7A of stand 19174. According to receipt No SA 17191 issued on 18 March, 2010, Ruth Nambela paid a total of K250, 000 as fees for the Certificate of Title. On that receipt, the address of the property is stated as 80B/7A/ 19171 Matero. The receipt is at page 109 J20 Ground 8 too has no merit because there is overwhelming evidence that the two portions of the property namely 1488B and 1488D were occupied by two different tenants. 8. CONCLUSION We dismiss this appeal as a whole because, the 2nd Respondent has not contested Faides Nambela's ownership on account of an erroneous offer made to Ruth Nambela who was deceased at the time. The failed plea of fraud by the Appellant has also helped the 1st Respondent to retain title on account of sections 33 and 34 of the Lands and deeds Registry Act. In light of what we have said about the 1st Respondent's acquisition of title to house No 148813, we deem it fit to allow parties to bear their own costs. ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ I M. M. KONDOLO, SC COURT OF APPEAL JUDGE U C. K. MAKUNGU COURT OF APPEAL JUDGE M. J. SIAVWAPA COURT OF APPEAL JUDGE J22