Annabel Flowers Limited v Kizito Kamuvwi Mulaisho And Anor (APP. NO. SP 58/2023) [2024] ZMCA 262 (30 September 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APP. NO. SP 58/2023 BETWEEN: 3 0 SEP 2024 ANNABEL FLOWERS LIMITED APPLICANT AND KIZITO KAMUVWI MULAISHO AND DOMIINC MAZUWA MULAISHO (suing in their capacity as Joint administrators of the Estate of the late Dominic Chola Mulaisho) RESPONDENTS CORAM: Makungu, Chishimba and Muzenga, JJA On 12th February 2024 and 30th September 2024 ./ For the Appellant: Mr. M. Ndalameta, Mrs. M. Chomba - Messrs May & Company For the Respondents: Ms. J. S. Mutemi, Messrs Theotis Mutemi Legal Practitioners MAJORITY RULING MUZENGA, JA delivered the Ruling of the Court. C@s@-feferred to: 1. Savenda Management Services v Stanbic Bank Zambia Limited. Legislation referred to: R2 1. The Court of Appeal Act No. 7 of 2016. 2. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016. 3. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 This application is by way of a Notice of Motion for leave to appeal and stay of execution of judgment pending determination of application for leave to appeal. The application is made pursuant to Section 13(3) of the Court of Appeal Act No. 7 of 2016, as read with Order 11 Rule 1(1) and (2) and Order 10 Rule 5 of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016. 2.0 BACKGROUND OF THE APPLICATION 2.1 The background to this application is that Dominic Chola Mulaisho (now deceased) and the second appellant commenced a matter in the High Court through a writ of summons against the respondents. Following his demise, letters of administration were obtained from the Probate Registry, in which Kizito Kamuvwi Mulaisho and Dominic Mazuwa Mulaisho were appointed administrators of his estate. He was thus R3 substituted by the two administrators, who appear as first plaintiff in the court below and as first appellants in the appeal which came before us. 2.2 The letters of administration were dated 22nd February 2019. The matter was scheduled to come up for trial in the court below on 7th April 2021. The 4th respondent filed a notice of intention to raise preliminary issues on 13th March 2021, which the trial court heard and dismissed the matter on the account that the letters of administration ought to have been registered. The respondent herein appealed to this court and on 24th November 2023, we delivered a judgment which is the subject of this application. 2.3 Discontent with our Judgment, the applicant filed this application on 3th December 2023. 3.0 THE DECISION OF THIS COURT 3.1 After hearing the appeal we ruled that the letters of Administration granted to the respondents on 22nd February 2019 be registered against the certificate of title in respect of Subdivision J of Farm No. 34a Lusaka within 60 days of the Judgment and that the matter be sent back to the High Court for trial. 4.0 THIS APPLICATION R4 4.1 This application is supported by an affidavit and skeleton arguments. The gist of the affidavit in support is that the applicant wishes to appeal and believes that the intended grounds of appeal to the Supreme Court have huge prospects of success. It is averred that the questions that the applicant intends to raise on appeal are of particular importance as they call upon the Supreme Court to determine definitively, among other things whether an extension of time can be granted to a party that has not asked for it or applied for it, without regard to the prejudice that the opposite party would suffer. 4.2 The applicant averred that the intended appeal will raise a question whether the legislative requirement to register letters of administration as set out in the provisions of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia, is procedural rather than substantive, and as such, curable in the same manner as a breach or non-compliance with procedural rules of Court. 4.3 Further, whether administrators of a deceased's estate can proceed to register letters of administration against real property that no longer RS forms part of the deceased's estate having been properly and lawfully sold to a third party. 4.4 It is further averred that granting of the stay of execution of the judgment pending determination of the applicant's application will help maintain the status quo and avoid the injury that will be occasioned on the applicant if, on appeal, the Supreme Court were to find in its favour. 4.5 In further support of the application, the applicant filed skeleton arguments. The gist of the skeleton arguments was twofold. Firstly it was contended that this application satisfies the test for the grant of leave to appeal set out in Section 13 of the Court of Appeal Act. According to the applicant, the intended ground of appeal raises points of law that are of public importance. It is submitted that for a point of law to be one of public importance, it must be one whose impact and consequences are such that it transcends the litigation of the parties and bearing upon the public interest. It is submitted that the applicant's intended appeal is not merely private but aimed at having the Supreme Court definitively rule on cardinal principles of law which are at the centre of the land registration system, the effect of such R6 non-registration on ongoing litigation and whether the court can cure flaunting of substantive provisions of law in the same manner that it would cure breach of procedural rules of court. According to the applicant our decision conflicts with the settled principles of law that require letters of administration to be registered in accordance with the provisions of the Lands and Deeds Registry Act. 4.6 It was contended further that the Law relating to Section 6 of the Lands and Deeds Registry Act, is settled and to hold that the defect or failure to register letters of administration is curable, this court fundamentally changed the long-established and settled land registration system by depriving the forceful effect of documents being null and void for want of registration. 4.7 It was argued further, that by holding that the High Court ought to have exercised its discretion provided in Section 6(i) of the Lands and Deeds Registry Act and Order 16 rule 1 of the High Court Rules to cure the defect, especially since the respondents would not have suffered any prejudice, this court disregarded the long established principles on extending time for registration of documents R7 in relation to land, which requires sufficient material for discretion to be exercised favourably. 4.8 According to the applicant, registration of the said documents is very vital. Where it is not done, an application to register out of time must be made before the commencement of a suit which the respondent here failed to do. 4. 9 It is the applicant's further submission that its application is of public importance as it seeks the intervention of non-registration of letters of administration, the effect of such non-registration on ongoing litigation and whether the court can cure an administrator's failure to abide by this legislative requirement in the same manner that it would cure a failure by a litigant to follow a procedural rule of Court. 4.10 The second limb of the applicant's submissions is that the intended appeal will be ruined as the retrial order by this court will lead to significant legal expenses, time consumption, and potential harm to the applicant's intended property if a stay of execution is not granted. 4.11 In summation, it was submitted that the issues to be dealt with in the intended appeal are in the interest of justice and are of public interest and thus need a pronouncement from the Supreme Court. 4.12 The application was opposed by way of an affidavit, list of authorities RS and skeleton arguments filed before the Court on 8th February 2024. The contents of these documents summarise that there is nothing in the intended appeal that is of public importance and that the appellant is merely aggrieved by the court's decision and is attempting to obtain a different outcome. It was submitted that the intended grounds of appeal are couched in a manner that is designed to resolve the dispute to the satisfaction of only one party rather than to impact the public interest. 4.13 It is contended that a reading of the judgment of this court will indicate that the principle regarding the registration of letters of administration at the Lands and Deeds Registry is settled to the effect that Letters of Administration are null and void and as such there is nothing further for the Supreme Court to pronounce itself on. 4.14 It is also contended that it is not in the interest of justice to kill a cause simply for want of registration when the defect is curable. According to the respondent, this court opted to exercise its discretion through Section 6 of the Lands and Deeds Registry Act by allowing the respondents to cure the defect. R9 4.15 It was the respondents' further submission that the effect of failure to register letters of administration is a principle of law that is well settled and certainly not in dispute and as such there is no issue of public importance here which the Supreme Court ought to pronounce itself on. 4.16 As regards the application for a stay of execution, it was submitted that the law is settled on the grant of a stay of execution. It was contended that the court is inclined to grant a stay of execution where there are good and sufficient reasons for depriving the successful party, of the immediate enjoyment of their judgment. That the applicant has not demonstrated sufficient grounds to warrant the grant of a stay of execution. According to the respondent the applicant has not also provided good and sufficient reasons for depriving the respondent of the fruits of its judgment and has also failed to demonstrate the irreparable loss or injury that will be occasioned if a stay is not granted. 4.17 It was submitted that there is nothing to stay as the respondents have already acted on the judgment sought to be appealed by registering the said judgment and registering the letters of administration and as such, a stay of execution will merely be an exercise in futility. RlO 4.18 All in all, we were urged to dismiss this application. 5.0 HEARING 5.1 At the hearing, both counsel relied on their affidavits in support and affidavit in opposition, as well as their skeleton arguments and list of authorities. Both of them made brief oral augmentations. We have noted the oral submissions which we do not intend to reproduce herein. 6.0 OUR DECISION 6.1 We have carefully considered the respondent's Notice of Motion, the affidavits for and against, the skeleton arguments relied on by each party, and the oral submissions by counsel. The application before us is for leave to appeal to the Supreme Court against the Judgment of the Court and stay of execution pending the application for leave. It is settled that an appeal to the Supreme Court in Zambia is no longer a matter of right as leave to do so must be sought and granted by the Court of Appeal. 6.2 Section 13 of the Court of Appeal Act provides that: "The Court may grant leave to appeal where it considers that- a) The appeal raises a point of law of public importance; R11 b) It is desirable and in the public interest that an appeal by the person convicted should be determined by the Supreme Court; c) The appeal would have a reasonable prospect of success; or d) There is some other compelling reason for the appeal to be heard." 6.3 The Supreme Court in the case of Savenda Management Services v Stanbic Bank Zambia Limited 1 gave guidelines on what this Court should take into consideration when handling an application for leave to appeal. The Apex Court stated that: "The permissible grounds for the grant of leave to appeal in civil matters are set out in section 13(3) (a) (c) (d). These are where: the appeal raises a point of law of public importance; the appeal would have a reasonable prospect of success; or there are some compelling reasons for the appeal to be heard. The rationale for the foregoing is an acknowledgement of the fact that the resources of the courts are overstretched and if it were otherwise, the doors to justice would be open to busybodies whose only aim is to delay the inevitable execution of a judgment. We are of the firm view that this court should only be open to a litigant who has moved the Court of Appeal and met the threshold set out in section 13(3)." 6.4 The applicant spiritedly argued that the intended appeal satisfies the requirements in Section 13 of the Court of Appeal Act as it raises R12 points of law that are of public importance. It was submitted that the applicant's intended appeal is not merely private but aimed at having the Supreme Court definitively rule on cardinal principles of law which are at the centre of the land registration system, the effect of such non-registration on ongoing litigation and whether the Court can cure flaunting of substantive provisions of law in the same manner that it would cure breach of procedural rules of court. 6.5 The applicant has further argued that its application is of public importance as it seeks the intervention of non-registration of letters of administration, the effect of such non-registration on ongoing litigation and whether the court can cure an administrator's failure to abide by this legislative requirement in the same manner that it would cure a failure by a litigant to follow a procedural rule of Court. 6.6 On the other hand, the respondent has argued that there is nothing in the intended appeal that is of public importance and that the appellant is merely aggrieved with the court's decision and is attempting to obtain a different outcome. 6. 7 We agree with the submission by the respondent that the applicant's intended grounds of appeal are couched in a manner that is designed R13 to resolve the dispute to the satisfaction of only one party rather than to impact the public interest. 6.8 In our judgment, we upheld the import of non-registration of letters of administration and went further to exercise our discretion in the interests of justice to cure the defect. This was to allow the matter which had been dismissed to be heard on its merit. Despite Section 6 of the Lands and Deeds Registry Act using the words null and void with reference to documents which are not registered within the stipulated time, the same Section allows a Court to extend time for registration or to authorise its registration after the expiration of that period. Clearly the use of the words null and void were not intended to hold the meaning assigned to it in ordinary usage but restricted within the context and scope of the Lands and Deeds Registry Act. We therefore find that the applicant's application for leave to appeal to the Supreme Court does not satisfy the requirements set out in Section 13 of the Court of Appeal Act, as it does not disclose a point of law of public importance and the appeal has no reasonable prospect of success, neither are there any compelling reasons for the appeal to be heard. R14 6.9 Concerning the application for a stay of execution, we note that the respondent has already executed the judgment set to be assailed. Coupled with the fact that we have found that the intended appeal does not satisfy the requirements set out in Section 13 of the Court of Appeal Act, it follows therefore that a stay is untenable. 6.10 All in all, we find no merit in this application. Leave to appeal and stay of execution are accordingly denied. We award costs to the respondent in this application, to be taxed in default. F. M. CHISHIMBA COURT OF APPEAL JUDGE ······~ ··············· K. MUZENGA COURT OF APPEAL JUDGE R15 DISSENTING RULING 3 0 SEP 2024 Makungu J, dissenting Cases referred to: 1. Bidvest Foods Zambia Limited v. CAA Import Limited SCZ 8/ 08/ 2028 Legislation referred to: 1. The Court of Appeal Act No. 7 of 2016 - Section 13 (3) (a) and (c) 2. The Lands & Deeds Registry Act Chapter 185 of the Laws of Zambia, sections 5 and 6 I have read the Ruling of my learned brother and sister refusing to grant leave to appeal to the Supreme Court. Having looked at the documents in support and in opposition to the application for leave to appeal, I will start by recapitulating the intended grounds of appeal contained in the draft Memorandum of Appeal at page 14 of the record of Motion for leave to appeal filed on 8 th December, 2023. They are as follows: (i) The Court below erred in law and fact when it accepted that the trial Court had come to the correct conclusion, but still went ahead and reversed the decision to dismiss the R16 Respondents' case on account of the letters of administration being null and void; (ii) The Court below erred in law and fact, and has fundamentally changed the long established and settled land registration system by depriving the forceful effect of documents being null and void for want of registration, and extending time for registration of documents in relation to land, contrary to established principles requinng sufficient material for discretion to be exercised favouraby; (iii) The Court below fell into error when it placed sole reliance on the distinguishable case of Chrispine Malambo and resorted to inherent jurisdiction at the expense of exercising discretion judiciously; and (iv) The Court below fell into error when it corelated the otherwise distinct concepts of triable issues and documents being null and void for want of registration, which have no bearing on each other. R17 I am of the view that the said grounds of appeal raise points of law of public importance and that the appeal is likely to succeed. The points of law of public importance, as I see them, are as follows: 1. Whether the legal requirement to register letters of administration as set out in Section 5 of the Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia is curable during court proceedings, by the court on its own motion notwithstanding the provisions of Section 6 of the same Act. 2. How and when can Section 5 of the said Act be invoked and by whom? Following the Bidvest case 1 which explains the circumstances under which the Court of Appeal can grant leave to appeal, I would grant leave to appeal on the basis that Section 13 (3) (a) and (c) of the Court of Appeal Act, 2016 have been satisfied and I would grant costs in the cause. C. K. MAKUN U COURT OF APPEAL JUDGE