Wycliffe Chsembele Mushipi v Polison Sunday Silupia (2021/HP/0783) [2022] ZMHC 93 (30 March 2022)

IN THE HIGH COURT FOR AT THE DISTRICT REGIS HOLDEN AT LUSAKA (Civil Jurisdiction) 2021/HP/0783 Jl REGISTRY X 50061 , \..uSf>I ~'t-.· IN THE MATTER OF: IN THE MATTER OF: BETWEEN: AN APPLICATION FOR AN ORDER THAT THE IS THE BONAFIDE LEGAL APPLICANT OWNER OF 2350/M OF SUBDIVISION 31 LUSAKA IN THE LUSAKA PROVINCE OF ZAMBIA LOT NO. AN APPLICATION FOR AN ORDER DIRECTING THE 2ND RESPONDENT TO TRANSFER LOT NO. 2350/M OF SUBDIVISION 3 1 LUSAKA TO THE APPLICANT WYCLIFFE CHSEMBELE MUSHIPI APPLICANT AND POLISON SUNDAY SILUPIA 1 st RESPONDENT NATIONAL INSTIUTE FOR SCIENTIFIC AND INDUSTRIAL RESEARCH 2nd RESPONDENT Before Honourable Mrs. Justice M. Mapani-Kawimbe in Ch a m bers on the 30th day of March 2022 For the Applicant: Mr. V. Mapulanga, M essrs MB Christopher L egal Practitioners For the 1 st Defendant: No Appearance For the 2 nd Defendant: No appearance JUDGMENT J2 Cases referred to: 1. Emmanuel Tarveris v Lucas Njovu 2014/ HP/0223 Legislation referred to: 1. High Court Act, Chapter 27 Introduction 1) By originating summons dated 12 th July 2021 , the applicant seeks the fallowing reliefs: i) An order that the applicant is the bona.fide legal owner of Lot No. 2350/ M of subdivision 31 in Lusaka in the Lusaka Province of the Republic of Zambia. ii) An order directing the 2 nd respondent to transfer Lot No. 2350/ M of subdivision 31 in Lusaka in the Lusaka Province of the Republic of Zambia to the applicant. iii) An order for a vesting order nominating the Registrar of the High Court to execute conveyance documents on behalf of the 1s t respondent. iv) Any relief the court may d eem equitable. Applicant's evidence 2) The summons were accompanied by an affidavit that was filed into court on the same day . It was deposed therein that on J3 24th February 2000, the 2 nd r esponden t offe red to sell house no. 20 NISIR Village International Airport Road in Lusaka ZMW6 ,696,000 (un-rebased) to the 1st r espondent, according to a copy of the offer letter in applicant's affida vit marked exhibit 'WCMl '. 3) The 1st respondent purchased the property from the 2 nd r espondent on 18th September 2003, at the pnce of ZMW35 ,000,000 (un-rebased). Thereafter, he sold the property to the applicant and all efforts to tr ace him to complete the conveyance were r esultless. At the material time of purchase, the property was not on title and had not b een transferred from the 2 nd r espondent. Notwith standing, th e 1st respondent r equested the latter in a letter dated 18th September 2003, to transfer the property directly into applicant's name. A copy of the letter was produced in the exhibit marked 'WCM 2 ' of the affidavit. 4) The applicant averred that the property was sub sequently surveyed and numbered a s subdivision 31 of Lot 2350 / M for purpose of processing title. He was given a survey diagram, a copy of which was exhibited a s m arked 'WCM 2 ' in his J4 affidavit. On 9 th March 202 1, the 2 n d respondent applied for property transfer tax clearance from Zambia Revenue Authority (ZRA) in h is name according to the copy of letter marked exh ibit 'WCM4'. However , the conveyance of property remained incomplete and the a pplicant through this action sought to en force h is rights. He concluded by urging the court to grant him the orders that wer e p laced before it. Skeleton arguments 5) In further support of the case, the applicant's learn ed counsel Mr. V. Mapulanga filed skeleton arguments on even date . He submitted that, the applicant bought lot no . 2350 / M of su bdivision 3 1 in Lusaka from the 1st respondent. It had been earlier sold to the latter by the 2 nd respondent. At the material time, the property was not on title and was known as house no. 2 0 NISIR Villa ge Interna tional Airport Road , Lusaka. Upon the 1st respondent's request to the 2 n d respondent, the certificate of title was to be processed in th e a pplicant 's name. However , the 1st r espondent moved on not be traced and as a r esult, the conveyance process s talled. JS 6) Be th at as it were, t h e 2 nd r espondent supported the transfer of th e prop erty in the applicant 's name . The property was la ter surveyed, and n umber ed as lot no. 2350 /M of subdivision 3 1, Lu saka. Counsel further submitted that, the applicant was en titled to th e orders p laced before court and fortified his asser tion by citing th e case of Emmanuel Tarveris v Lucas Njovus 1 , wh ere the court ordered the Regis trar of Land s to effect transfer of property in similar cir cu mstances. 7) He also cited section 14 of t h e High Court Act, as follows : Where any person neglects or re fuse s t o c omply with a judgment or order directing him to execute any conve yance , contract or other documents or to endorse a ny negotiable instrument, the court may on such terms and conditions, if any, as may be just, order that the conveyance, contract or other documents shall be executed or t hat t he negotiable instrument shall be endorsed by such person as the court may nominate for that purpose, and a conve yance , contract, document or instrument so executed or e ndorsed shall operate and be for all purposes available as if it had been executed or endorsed by the person orig inally directed to execute or endorse it. 8) Counsel concluded by reiterating the applicant's prayer before court. J6 9) The respondents did not enter any appearance nor file any documents in opposition, even after they had been served the applicant's originating process. An affidavit of service was filed into court on 14th February 2022, and demonstrated that the respondent's had sufficient notice of the cause. Hearing 10) I held the hearing of this matter on 22 nd March 2022 and was satisfied that the respondents had been sufficiently served. I proceeded under Order 35 of the High Court Rules, which empowers a court to hear cases where there h as been sufficient notice given to a respondent. Learned counsel for the applicant told the court that he would entirely rely on the documents that were filed in support. Analysis and disposition 11) I have consider ed the application, evidence a dduced and skeleton arguments filed h erein by coun sel and the authorities cited therein. Briefly r eprised, the a pplicant bought house no. 20 NISIR Village, International Road Lusaka from the 1st respondent. The house p reviously belonged to the 2 nd respondent and it consented to the sale of the J7 property. It furth er vouched for the a pplicant by requesting ZRA to issue a tax clearance certificate directly in his name. The conveyance never completed because the 1st resp onden t cou ld not be traced. 12) Even if the respondents appeared b efor e court, the facts of t his case would be undisputed. Consequently , the iss u e b efore court is whether the applicant is the bonafide owner of the suit property? If the answer is resolved in the alternative, the ancillary issue will be whether the 2 nd respondent and Registrar of the High court s h o uld complete the conveyance of the suit property? 13) From the undisputed facts , it follows as a finding of this court that, the applicant is the bonafide owner of the suit land based on the unassailable exhibits marked "WCM 1" to "WCM4". They show firstly that the applicant bough t the suit property from the 1st respondent after the 2 nd respondent sold it to him. He passed on his interest to the applicant and as s u ch , is now bestowed with equitable interest. I must however , clarify that the applicant is not the legal owner of the suit land becau se h e JS has not obtained a certificate of title but holds bonafide ownership. 14) In order to achieve legal status, I find that the applicant's prayer that the Registrar should sign the property transfer documents because the 1st respondent cannot be traced must be granted. Equally, his prayer that the 2 nd respondent should transfer lot no. 2350 /M of subdivision 31, Lusaka to the applicant should be granted. Accordingly, the prayers are hereby ordered. 15) In concluding, costs for these proceedings shall be for the applicant to be taxed in default of agreement. Dated at Lusaka this 30th day of March 2022. ~ M. Mapani-Kawimbe HIGH COURT JUDGE