Real Meat Company Ltd v Sen (Appeal 191 of 2000) [2001] ZMSC 120 (30 November 2001)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 191/2000 HOLDEN AT LUSAKA (CIVIL JURISDICTION) IN THE MATTER OF: PROPERTY NO. 7193 LUSAKA IN THE MATTER OF: THE LANDS AND DEEDS REGISTRY BETWEEN: THE REAL MEAT COMPANY LIMITED APPELLANT AND DIPTI RANI SEN (Executrix and Administratrix of The estate of AJIT BARAN SEN) RESPONDENT CORAM: LEWANIKA, ADCJ, late CHAILA, JS and MAMBILIMA AJS On 19th July, 2001 and 30th November, 2001. For the 1st Appellant: C. A. NJOBVU of Solly Patel, Hamir and Lawrence For the 2nd Appellant: No Appearance For the Respondent: A. WRIGHT of Malambo, Silwamba and Company with Mrs. L. MUSHOTA of Mushota and Associates JUDGMENT LEWANIKA, A. DCJ delivered the judgment of the court. - J2 - The panel that heard this appeal included our late brother Justice CHAILA. This judgment should therefore be taken as a judgment of the majority of the panel. This is an appeal against the decision of a Judge of the High Court as ordered that a caveat entered on Stand No. LUS/7193, Lusaka by the Respondent be restored and that all purported transactions on the said property are null and void ab initio and be cancelled. The evidence on record is that the 2nd Appellant was the registered owner of Stand No. LUS/7193, Lusaka. The Respondent is the executrix of the estate of the late AJIT BARAN SEN who was an employee of the 2nd Appellant. The Respondent had instituted proceedings against the 2nd Appellant and on 14th October, 1999 obtained judgment against the 2nd Appellant in the sums of K9,682,970,00 with interest and US% 59,683.75 with interest. Execution was levied but there was a nulla bona return. On 5th November, 1999 the Respondent entered a caveat on the said property as a judgment creditor. On 2nd December, 1999, the learned trial judge granted the Respondent leave to issue a writ of possession on the said property. In the meantime Barclays Bank Zambia Limited, who were the 3rd Respondent - J3 - in the court below had entered a caveat on the same property on 5th December, 1983. On 2nd December, 1999 the 2nd Appellant assigned the said property to the 1st Appellant for consideration and on 1st December, 1999 Barclays Bank Zambia Limited filed a withdrawal of the caveat that they had entered on 5th December, 1983. On 2nd December, 1999 the assignment between the 1st and 2nd Appellant and withdrawal of caveat and other related documents were lodged at the Lands and Deeds Registry and a Certificate of Title for the property subsequently issued to the 1st Appellant. It was this action which prompted the Respondent to institute proceedings in the court below and obtained the orders made by the learned trial Judge which are the subject of this appeal. Counsel for the 1st Appellant has filed three grounds of appeal, the first ground being that the court below erred and was wrong in fact when it found that "what in fact transpired is that the these parties especially the 1st and 2nd Respondents caused the Plaintiffs caveat to be removed", when no evidence was adduced to support this conclusion. In arguing this ground, counsel submitted that in the court below the parties had filed affidavits and did not adduce any viva voce evidence. That - J4- the Respondents in their affidavit had asserted that the 3rd Respondent in the court below, Barclays Bank, had caused the removal of their caveat lodged on 5th November, 1999 an assertion which was denied by the 3rd Respondent in their affidavit which opined that the staff at the Lands and Deeds Registry could have removed the Respondent’s caveat on their own. Counsel further said that there was no evidence called from the Registrar of Lands and Deeds to shed light on how the Respondent's caveat was removed. He submitted that there was no evidence on record to justify a finding that the 1st and 2nd Appellants were responsible for the removal of the Respondent's caveat. In reply counsel for the Respondent submitted that there was sufficient evidence to show that the 1st and 2nd Appellants surreptitiously removed the caveat lodged by the Respondent. He said that Sections 81-83 of the Lands and Deeds Registry Act makes adequate provision for the removal of a caveat once it has been lodged. That in addition the Act makes it clear that once a caveat is lodged it can only be removed by the following:- 1. the caveator; - J5 - 2. 3. the Registrar of Lands and Deeds; the Court. Counsel said that in the present case the caveat was not removed by any of the above although the computer print out shows that the caveat was removed by the caveator which was not correct. He further said that to make matters worse, the same day when the caveat was removed the property was assigned by the 2nd Appellant to the 1st Appellant. That the whole transaction was intended to defeat the judgment and order of the court and smached of sharp practice. He submitted that the appeal cannot succeed on this ground. The second ground of appeal was that the court below erred in law and in fact when it implied that the fact that there were two caveats registered on the property was not an issue and further erred when it ignored the provisions of Section 79 of the Lands and Deeds Registry Act. In arguing this ground counsel for the 1st Appellant submitted that it is clear from the evidence on record that when the Respondent’s caveat was lodged on the property in question on 5th November, 1999 there was in place - J6- a caveat lodged by Barclays Bank in 1983. He says that the lodgement of the second caveat by the Respondent on a property that was already caveated was contrary to Section 79 of the Lands and Deeds Registry Act. He submitted that this issue ought to have been addressed by the court below as its resolution would have affected the outcome of the proceedings in the court below. He said that the court erred in failing to address the issue of the two caveats vis a vis section 79 of the Act. In reply, counsel for the Respondent submitted that the issue in the court below was whether a caveat can be removed without following the laid down procedures prescribed by law. He said that the interest which Barclays Bank Limited were protecting was that of a mortgagee which interest was discharged on 2nd September, 1997. He said that assuming that the caveat of Barclays Bank was still effective on 2nd December, 1999, the property was still conveyed to the 1st Appellant with the Barclays Bank Caveat intact. He said that the question still remains as to whether a caveat can be removed without recourse to the court, the caveator and/or the Registrar of Lands and Deeds. He submitted that the appeal cannot succeed on this ground. - J7 - Turning to the third ground of appeal counsel submitted that the learned trial judge failed to address the legal arguments raised by the Appellants vis: "(i) that a mere judgment creditor as the Applicant in this action, has no registable interest on this property; and (ii) that this piece of land already had an earlier caveat. You cannot lodge a caveat on a caveated piece of land.” In arguing this ground counsel submitted that Section 4 of the Lands and Deeds Registry Act provides for what is to be regarded as a registable interest in land and Section 76 of the same Act provides for any person claiming to be entitled to or to be beneficially interested in any land or any estate or interest thereon to place or lodge with the Registrar of Lands and Deeds a caveat in respect of the concerned land. He said that the judgment which the Respondent obtained cannot properly be described as a document as defined under Section 4 of the Lands and Deeds Registry Act and it therefore is incapable of conferring on the Respondent any registable interest in the land in question. Neither can the Respondent claim to be entitled to place a caveat on the concerned land by virtue of Section 76 of the Act. He said that the failure of the court to - J8 - address these issues caused it to come to an erroneous conclusion by ordering the restoration of a caveat which was illegally lodged and therefore null and void ab initio. In reply counsel for the Respondent submitted that the Respondent was not a mere judgment creditor as after execution by way of fifa failed the Respondent made an application for leave to execute the said judgment by writ of possession. He then referred us to Order 42 Rule 1 of the High Court Rules as amended and contended that the Order for leave to execute on judgment by writ of possession on a property may be registable. He submitted that the appeal must fail in its totality. We have considered the submissions of counsel for the Appellants and for the Respondent, in our view there were two issues which should have been resolved in the court below. Firstly whether the Respondent had a registable interest in the property in question which would have entitled him to lodge a caveat and if the answer is in the affirmative, whether a caveat ought to have been lodged on that property having regard to the fact that there was already a caveat on the same property. Section 76 of the Lands - J9 - and Deeds Registry Act sets out who may lodge a caveat on a property and the Section provides as follows:- 76. Any person: (a) claiming to be entitled to or to be beneficially interested in any land or any estate or interest therein by virtue of any unregistered agreement or other interest or transmission or any trust expressed or implied, or otherwise howsoever; or (b) transferring any estate or interest in hand to any other person to be held in trust; or (c) being an intending purchaser or mortgagee of any land; may at any time lodge with the Registrar a caveat in form 8 in the schedule. In the matter before us the Respondent had obtained a money judgment against the 2nd Appellant on 14th October, 1999. Execution was levied on the said judgment but with a nulla bona return. Counsel for the Respondent then applied ex-parte for leave to issue a writ of possession on 2nd December, 1999 and obtained an order granting leave on the same day. It was on the basis of this order that counsel for the Respondent argues that the Respondent was entitled to lodge a caveat on the property. Counsel has conveniently overlooked the fact that the caveat on the property was lodged - J10 - on 5th November, 1999 long before the application for leave was made and granted. As we have stated previously, the judgment that the Respondent obtained against the 2nd Appellant was a money judgment and did not create or confer on the Appellant any interest on the property on which the Respondent lodged the caveat. The Respondent did not therefore come within the ambit of Section 76 of the Lands and Deeds Registry. Further Section 79 of the Lands and Deeds Registry Act provides as follows:- Section 79 So long as a caveat in form 8 remains in force, the Registrar shall not make any entry on the register having the effect of charging or transferring or otherwise affecting the estate or interest protected by such caveat. Provided that nothing herein shall prevent the completion of the registration of an instrument which has been accepted for registration before the receipt of the caveat. In the matter before us, there was a caveat lodged by Barclays Bank of Zambia Limited on 5lh December, 1983 which was still in force when the Respondent purported to lodge a caveat on 5 November, 1999. The 11. Registrar of Lands and Deeds ought not to have accepted the lodgement of the said caveat. For the reasons we have given we would allow the appeal ’ Jll - and set aside the order of t]ie court below. The costs are to be taxed in default of agreement. D. M. Lewanika ACTING DEPUTY CHIEF JUSTICE I. M. C. Mambilima ACTING SUPREME COURT JUDGE