David Howes and Ors v Betty Butts Carbin (Sued in her capacity as Trustee of the Estate of the late DAISY BUTTS) (APPEAL NO. 64/2008; SCZ/8/22/2008; SCZ Judgment 5 of 2012) [2012] ZMSC 121 (2 February 2012)

I H J THE SU?REME COURT FOR. Z.fl:,M BP~ e-f !JLOEN AT KASi'VE ANO LIJSA,•tA. (C i,·i! )urisdictionj BETWEEN : DAVID HOWES DANIEL SIMULOKA VIVIAN KANONDO WALKER MIYOBA JANET' B. MUSUNGA A. B. MBATA CONSTANTINE: CHIMUKA ALFRED HANANKUNJ STEMON LUMAMBA AND P107 APPEAL NO.64/200_8: SCZ/8/22/2008 1 ST APPELLANT 2ND APPELLANT 3 RD APPELLANT 4TH APPELLANT STHAPPELLANT 6TH APPELLANT 7rH APPELLANT 8 TH APPELLANT 9TH APPELLAN. T BETTY BlJTrS CARBIN (Sued in her capacity as Trustee of t:h. P. estate of the latE: DAJSY BUTTS) RESPONOE:NT CORAM: Sakala, C. J. , Chlbesakunda, Mwanamwambwa, J. J. S., On 11th August 2009 and 2 n.d February 2 01.2 For The Appellants: For the Respondent: A1r. S. S. Zulu, S. C., of M essrs Zulu & Company. Mr. B. Mosha of l\1essrs Chilupe & Company JUDGMENT Mwanamwambwa, JS, delivered the Judgment of the Court. Cases Referred to: 1. 2. Z□mbiaBY.,__.ildi.ny and Civil E::ngineering and Contractor~_L--iimt~d v Georgoopollos (1 972] Z. R. 228. Wesley Mulungushi v Q_ather ine Chornba [2004] Z . R. 96. Legislati:,n referred to: 1. T he Trusts Restriction Act,-CAP 63 of-the-baws of Zambia. SecUons 3 - ·- (c), 4 (a}, (b), 5 (1) (a) , (b), (c), and 6 (1). ?108 2. Th e La nds _?n_g_ De?s;!s__B~gist_r.y __ A~t, CAP 185 of the Laws of Zambia, Section 35. 3. The Statute of Frauds. 1677, Section 4. The delay in d elivering this judgment is d eeply regretted. It is due to heavy workload. This is an appeal against the Judgment of t h e High Court of 16th January 2008. By that Judgment, the High Court refused to make declarations and orders in favour of the Appellants. At the centre of this case is PLOT NO. 403 MONZE. The property consists of some shops. The property was initially owned by the late Mr. Fredrick Charles Bui.ts. He die.cl on 16tl1 October l 961, and left a will. In that will, he gave and be queathed the property in question to his two Rons, namely Mr. ,James Anthony Butts and Mr. Charles Michael Dutts, in equal shares. However, the will also provided that his wife, Mrs. Daisy Butts, would have full use of the property, including receiving rent, inco1ne or fruits accru1ng from the property, d n ring her life. ---· On 25Lh March 1964, t.hP- property 111 question ,vas tra n sferrerl into the na1nes of the two sons_, James Anthony Butts i-1nd Charles Michael Bulls and. their n10thcr, as joint · -·ten-a:rrts. They-were .tssueci with a joinl Certificate of Title, --.. I - ,vhicl1 appea rs c1 i page lo 2 or Volume II oC the record of appeal. Mrs. Daisy Bulls died on 3 rd Feb rua ry 1974. She left a \1/ilL Her Will does not 1ncntion the property in question. ?109 The Respondent, Mrs. Be tty Butts Carbin , is the daughte r to Mr. James Anthony Butts, one of the son s to the origina l owner and Mrs. Da isy Butts. Therefore, s he is the grandda ughter to the original own er. The Appellants cJaim to be tenants of shops on the property. They contend that they bought the sub-divisions of the property from Mr. Mwenya Lwatula, a Trustee of the property and also Lavvyer frorn Ellis and Cotnpany. Ellis and Company were administering the property on b ehalf of Mrs. Margaret Joyce Butts and Mr. Charles Michael Butts. Mr. Lwatula was sued a s the 2 nd Respondent in the Court below. It a ppears tha t he is no longer a party to this appea l. Their evidence is that the Respondent's gran dfa ther offered to sell them the property, when they were tena nts. That they bought the property in about 198 1. That before they could b e issued with Cer tific ates of Title, the -~ esp ondent pla ced a caveat on the _ prope. I.!J~ She also presented the Appellan.~with do.guments + . . . - ~ - - =--~~ that she was the legal owner of the p rop erty and that they s hould pay rent to her. They started p aying r ent to h er. Later , the Respondent tried to tak e pos session of the property. That prompted· them-to cummcrrce this• actiol'L · ·They did so·oy · - -, ...! Pi10 originating surnnwns, s e eking deLcrmination or Lhc following questions: i. Whether the Respondent is a beneficiary of the estate of the late Mrs. Daisy Butts; ii. Whether the Respondent is within her rights to collect rentals from properties on Plot No. 403, Monze, belonging to the estate of the late Mrs. Daisy Butts;and iii. Whether the full the Appellants having paid purchase price for Sub-Divisions 1-9 of Plot No. 403, Monze, are not entitled to be issued with the Title Deeds, in respect thereof. Based upon the above, the Appellants sought the following reliefs:- (i) (Ii) A declaration that they are the rightful owners of the properties that they purchased from part of Plot No. 403, Monze from Mr. Lwatula, then the 2nd Respondent, who was then the duly appointed Trustee of the Trust of the Will of the late Fredrick Charles Butts, relating to Plot No. 403, Monze: An Order that the caveat placed on Plot No. 403, Monze by the Respondent, be removed to enable completion of the sale transaction relating to Sub Division 1-9 of the said Plot, to the Appellants; (iii) An Order that the Respondent, in her capacity as Trustee of the Will of the late Fredrick Charles Butts relating to Plot No. 403, Monze, completes the transaction of the sale o~Q roperties on Plot No. 403, Monze, to all the Appellants, by way of __ specific..pm:formance; ··-~ -- __ · (iv) An injunction to restrain the Respondent from evicting th e Appellants from their properties, on Plot No. 403, Monze, until the whole matter is dissolved. -~ -1 ~ ~ ~ - - -- - ,; ~ -,/ I ~ ...:l ~ - --- - The Appellants conceded Lhnt the Rcs poudclll was a Trustee of the property in issue and that there was no letter offering them to l>uy the property. P11i After evaluating the affidavit a nd oral evidence , the learned trial Judge found: 1. That Mr. Charles Michael Butts and his wife, Mrs. Margaret Joyce Butts, did not acquire interest in the property, r esulting from the Will of Mrs. Daisy Butts. Therefore, they could not give instructions to Ellis and Company, to dispose of the property, or otherwise, on the strength of her WIii. 2 . That there was no valid contract of sale of the property to the Appellants. 3. That the 'sale' of the property to the Appellants was questionable anrl invalid. 4. That as holder of a power of Attorney from Mr. James Anthony Butts, the Respondent was within her rights to collect rentals from the property in issue. Accordingly, he refused to make th e declarations and orders requested for. He dismissed the matter and discharged the injunction. There arr,..3.une (9) ~·grou11clo of appeal. ··- - -~·.l.. . Out.~ these, . grounds one , two, four and six ar.e. ~'-related. Grouu<ls five - .., ., --~~ ; . - ; and seven are also inter-related. Whereas grounds three, eight and nine, stand alone . For convenience and to avoid repetition, we shall deal with grouncls one , tvvo , fo ur and_ six together. - - - - - Next., we shall d e81 with grounds fivt: and seven together. .. - ---- ----- - - - -- ---- - Thcrca[ter, we s hnll deal vvitb grounds three, cig11t a n d nine, separ ately. P112 Grounds one, two) four and six read a s follows: "1 . The learned trial Judge was wrong at law by failing to find that under Section 5 of the Trusts Restriction Act, CAP 63 when the Act came into force in 1970, the Monze property in issue did vest in Mrs. Daisy Butts absolutely who was a tenant for life under the Will of Fredrick Michael Butts to the exclusion of her two sons Charles Michael and James Anthony. "2. The learned trial Judge was wrong at law by finding that Charles Michael Butts and his wife Mrs. Margaret Joyce Butts had no interest in the Monze property, resulting from Mrs. Daisy Butt's Will and therefore could not give instructions to Messrs Ellis and Company to dispose of the property or otherwise on strength of her Will." u4_ The learned trial Judge misdirected himself by finding that Anthony James Butts was joint owner of the property as at law his beneficial interest under Fredrick Butt's Will was extinguished by the Trusts Resctriction Act, and Daisy Butts did not include him in her Will." "6. The learned trial Judge misdirected himself by finding that the estate of Daisy Butts did not inc lude the property at Monze." On ground one, on behalf of the Appellants, Mr. Zulu, ·- · - · ··· -----. - ~ • - --State Counsel, sub1nits ~that urider The Trusts Restrictions Act , CAPJ-6ff-bf the t ·iws of Zambia, Mrs. Daisy Butts became the abs olute own er of th e property at Mon ze, under the Will of her la te h u s band, Mr. Fredrick Michael Butt s, because she was a life t~nant, on t h e-:. b asls of parqgn\ph 4 of the Will. He .... - -- ·=------ - --· -.. - - - - :P113 submits that Section 3 of tl1c Act, prohibits a pe rson Crom 111aking any disposition, whcrcunder property vesls 1n possession at a future date, after commence1nent of this Act. That under Section 6 ( 1) of the Act, any property under Trust which at the commencement of the Act, was to vest in possession at a future date, for instance in a Will 1 such trust or disposition shall be deemed to have been made after commencement of the Act. That under Section 5 (1) (a) of the Act, after conunencement of the Act, a settlement shall have effect as a disposition in fee simple or absolutely, as the case may be, to the tenant for life, in this case, Mrs. Daisy Butts. He adds that the gift of the Monze property to the children, Charles Michael and James Anthony is not saved under Section 4 (b) of the Act because the Will did not contain a provision that on the remarriage of Mrs. Daisy Butts, the widow, the property shall forthwith vest beneficially in such children. He adds that although the will was made in 1961, that disposition was, by virtue of Section 5 of the Act, d ee1ned to have been made after 24U-1 December 1970, when the Act came into effect. That after December 1970, the Monze property becan1e the property of the widow, abso}~tely. She was no longer a tenant for life and v._:as - ~~~ .:a:-= ~ - . , f " • - - - : - ~ . at liberty to u:ispose it as she _§ill.~ _tit. That she b equeathed it to , . ~, . . - Cnarles B u tt and his wife. The wife instructed Ellis and Company to sell the property. Therefore, the Respond ent h as no entitlement to the property. - -- P114 Un ground two , Mr. %ulu sub1nits that after l 970, by operation of Law, the Monzc property was o\vncd absolutely by Mrs. Daisy Butts. He submits that since Mrs. Daisy Bu tts d id not in her will, bequeat h the Monz~ property specifically to any person, it forms part of her r esiduary estate, in which Mr. Charles Michael Butts and his wife, Margaret Joyce Butts, were:: beneficiarie s. That at the death of Mrs. Daisy Bulls, on 3 rd February 1974, the Monze property, became the property of Mr. Cha rles Michael Butts and his wife, Mrs. Margaret -Joyce Butts. They could, therefore , give instructions to Messrs Ellis and Company to dispose of the property. On ground four, Mr. Zulu repeats his submissions under ground one and two, to the effect that after the passing of the Act in December 1970, the Monze property was owned absolutely by Mrs. Daisy Butts, who in her Will did not include Mr. James Anthony Butts, as a beneficiary in her residuary estate, which included the Monze property. On ground six, Mr. Zulu repeats his submissions on ground two. =o~ behilf of the Respondent_, Mr. Mosha Brgued grounds ~ r.:.= -= - · = one, two, four and six together. He submits that the record clearly shows that the learned trir:11 ,J11rl3c addr essed hin1e.;elitu the la\v relating to Trusts , when he rnade a distinction belween .., -I ?115 a beque s t a n d a lif"c usurru ct, .:1s per p ages 17 and 18 or the record of proceedings. He Rubn1it s thal on the [acts, there was no settlement in favour of Mrs . Daisy Butts. That she acquired no legal interest in the la nd in is s ue, u p on the Trust Re striction Act coming into force in 197 0 1 a s the property did not vest in her absolu tely or at a ll. He points 01Jt that at p a ge 1 S2 D[ the record of appeal is the Certificate of Title issue d to the two s ons in 1964, in respect of the property. That Mrs. Daisy Butts died in 197 4. Then the property was vested in the two brothers. S o it could n ot have hc:~n part of h er estate . Therefore, grounds hvo, four an.cl t-ii x of appeal should not succeed, a s Mrs. Margo.1~et Joyce Butts was a beneficiary u n d er the estat e of Mrs. Daiisy Butts, who only had a life usufruct in the Monze property. Consequently, she h a d no capacity to issue instructions to Mess rs Ellis and Company to dispose of the property on the strength of Mrs. Daisy Butt's Will. We have exa1nined grounds one., two., four a..nd sLx and h ave consid~red submissions by Counsel thereon. The~e grounds hinge on !he m eaning and e.ffcct. of Sections 3 (c) , 4 (b), .. ? ( 1) (a}, (b) an d (c) ., and fl ( 1) of the Trusts Rcsctrictions Act, CAP 63 of the L~_9f Za~bia (hcrciiiafter referred.. t.o~THE ... . _ -~ - - •·• ••:. hlLH&a:- . ACT-'·'). These Sectfons read as follows: - "3. Save as h~reinafter provided, after commencement of tills Act, person shall not - (c) make any disposition whereunder property vests in possession al a future date ." __ ... ____ ·· - · - - -- ..... Pi16 "4. N0thing in thi s Ac t shall app ly lo:- (b) a disposition whereunder property is limited to, or in t ru st for , a wid ow, either for h er life o r for som e other period, with a gift over in f avour of c hildren, if suc h disposition contai ns a provision that on t he re-marriage of the widow the property shall fort hwith vest beneficially i n such children." "5. (1) Subject to the provisions of Section four, and notwithstanding anything to the contrary, contained in any other law, after commencement of this Act - (a) A settlement shall have effect as a disposition in fee simple or absolutely as the case may be, to the tenant for life; (b) A trust shall have effect as a disposition in f ee simple or absolutely, as the case may bet to the beneficiary; (c) A disposition whereunder property vests in possession at a future date shall be ineffective to create or vest any suc:h interest!' "6. (1) where at the commencement of this Act property is held under the existing settlement or trust, or a disposition is In existence whereunder property shall vest in possession at a future date, such settlement, trust or disposition shall be deemed to have been made after the commencement of this Act and accordingly I the provisions of Section Five shall apply." On 25th March l gf)4) the prop erty 1n dispute vvas transferred in t h e na.rnes of the lwo brother s, James Anthony Butts and Ch arles Michael Butts and th eir mot her, Mrs. Daisy Rutts, a s joint ten ants. This is as per Cer tificat e of Title at page 152 of the r.ecom :0f app eal. That fol1 ow~rl t h e dea .. of 1v1r. F-redrick B ut.t. R, the 'I'es tf:ll"dt in 190 1. In our view, on 25 th · ·~ . ..,;;;;:;:;a:11 March 1964 , t he prop t::r Ly was vested in t he two broth er s. H owever, their m other h ad n life in teres t in the p roperly u n til ~1 r d of February 1974, when she died. Her interest expin;d on her d eath. The Act took effer,t on 2 4th Dec ember 1970. Thnt --, -- - Pi17 wo.s six years after the properly h a d vcsi-cd in Lhc Lwo broth.er s , ,Jc1.n1cs Anthony a n d Charles Micha el. S e cllon 6 ll) oi the Ac t a ffect s property, ·which as at 24 th Dcce111bcr 1970, is to vest a t future date ; that is a date later than the commencement of the Act. In such a situation) the settlement, trust or disposition vesting the property, shall be deem e d to have b een made a fter the commencement of the Act. In effect , in such a situation, Section 5 of the Act would apply and r ender such interest in property ineffective. In the present case, the interests of the two brothers in t he property h aving ve sted earlier than the commencement date of the Act, we are of the view that Section 6 ( 1) of the Act does not apply and does not affect their interest in the Monze property. In short) Section 6 ( 1) of the Act does not affect an interest which has already vested. It affect s an intere st which is to vest at a future date. And a future date is one which falls after the commencement of the Act. Therefore, we hold that the property in question did not vest absolutely in Mrs. Daisy Butts, as a tenant for life, under her late husband's Will, to the exclusion of her two sons, James Anthony and Charles Michael. ~ =I;;-;~deed , we note that the· Will of M.rs----fiq_isy Butts does not m ention t h e Monze property. On t his particular issue) the Appe11ants argue that though not mentioned in t h e vVill, t h e Monze property was the r esidue of the es tate of Mrs. Daisy J3ults -unc:1-er -her-Will. -we- do-rrot accept-this-argument. P118 Residue is defined a s: "u smuli w 1wwd uf someU1i119 Uwt remains at the e ncl of the process, .. , - (See Oxford Advanced Learner's Dictionary, 7 th Edition). On the evidence, the property in question is a big structure. Initially it consisted of three plots. These were Plots 1, 2 and 3, Monze. Later, these were consolidated into one Plot; Plot 403, Monze. In our view, tangible property such as land and buildings in this case, cannot be classified as residue of an estate. Therefore, we hold that the Monze property did not pass on to Mr. Charles Michael Butts and Mrs. Margaret Joyce Butts, by way of residue of estate, under the will of Mrs. Daisy Butts. So, the two had no authority to give instructions to Ellis and Company, on the strength of her Will, to dispose of the property. Accordingly, we dismiss grounds one, two, four and six of the appeal. Next~ for convenience, we will deal with grounds five and sev.en before ground three. These read as follows:- "5. The learned trial Judge misdirected himself by finding that the Power of Attorney by Anthony James Butts in favour of his daughter the Respondent was valid to deal with the property in issue." - - ·· --=-_ ...... "7. The learned trial Judge misdirected himself by finding •-·that as holder of Power · of Attorney from James Anthcmyj3utts the Respondent wi:i's within her rigbts~;. collect rentals from the properties in issue.11 On ground five, Mr. Zulu subn1_its that the issues were: (a) whether Mr. Anthony Butts had any beneficial Interest in the Monza property, which he could give to his daugf:tter, the Respondent; and I (b) whether a Trustee rn a.y del egate his powers by powers of Attorney . He argues lhat. since Mr~ D a.isv Butts did not include Mr. ,. James Anthony Rntts in her \\Ti11 , h e had no b enefic ial interest in the Monze property, of \vhich Mrs . Dais y Butts hec3._mc the absolute owner after the Act came into force. He adds that if hi~ 1~8Hl a rgument is accepted , then it follows that the Respon dent, M:::> Hetty Butts Carbin, had no b eneficial interest in the Monzc property. Thal lhe Certificate of Title, if any, in her n 8me, was issued by a n oversight or ignorance of the law. H e refers to the caveat lodge d by the Respondent on the property and the interest she stated thereon. He then says that he agrees with the lcstimony of Mr. Lwatula ' Lhal lhe Respondent 1 8s Attorney for Mr. ,James Anthony B utts, could not exercise power as a Trustee in his place. On ground seven, Mr. Zulu, repeats his submissions on ground five, the gist of which is tha t the Res pondent had n o beneficial in terest in t he Monze property. We h ave considered Lhe submis sions on grounds five and seven. ~~..eat \Vhat \Ve s aid on grounds on~., t~~four and s ix. Anrl the gist of what w~d was that the Monzc p r operty d id n ot ves t n b s olutcly in Mrs. Daisy Butt:-:., by operation of law in 1970. H er life inlerest. in the property expired on 3 rd Febnrnry 1974> \Vhc n she died. V-lc add th.at the lvlon7,~ property is slill jointly O\vned by Mr. Jarncs Anthony Rutts a nd ~ ... -- - - ··- - - -- P120 Mr. Ch a rles Mic had Butts. Accordingly , lVl r . ,Ja n1e s Anlhony Butts can p a ss his beneficiary interest in the p roper ty, to the Respondent, his daughter. And as such beneficiary, it was in order for him to sign the power of Attorney, in favour of his daughter, over t he property a s h e did. We also reitera te that the Monze property did not form p a rt of the residue of the estate of Mrs. Daisy Butts, under her \Mill. We wish to emphasize that Mr. Charles Michael Butts is entitled to deal with the Monze property, as a direct beneficiary of it, under his late father's Will and not as a beneficiary of the residue of lhe estate of his mother, under her Will. For these r easons, grounds five and seven fail. We now move to ground three . This ground is that the learned trial Judge misdirected hjmself by fin.ding t.hat there were no valid contracts between the Appellants and Mr. Mwenya Lwa tula, on b~half of the Vendor a nd that the whole process was questionable. On ground three, M~: -~u Ju ~ nt.s out that, Mrs. Daisy Butts, by her Will, appointed the ~~nior Lalw Partner.s in Webb Low-·-tuul Barry in Bulawayo, to be t he Executon:; ur her Will. That the L aw firm also 'IN::=JS acting for h er and Mr. Cha rles Micha~] Butts. That Messt~ Ellis and Curnpany, Lusaka, were ?121 age n ts for Messrs \Vebb, Low and I3arry. Tha t f'v'lcssrs Ellis and Cornpany \,Vere also a cting for Mr. Charles Michael Butts and his wife, Mrs. Ma rga ret Joyce Butts, in relation to t he Ivlonzc properties. That Me ssrs Ellis and compa n y were instr ucted to sell the properties, by the beneficiaries , Mr. Charles Michael Butts a n d Mrs. Margaret Joyce R1Jtts. That moreover, Messrs . Ellis and Co1npany were instructed directly, by Mr. and Mrs C. M. Butts , to sell the property, as per page l 13 of the r e cord of appea l. That Messrs Ellis and Company r eceived purchase monies from the Appellants, as per r eceipts at p ages 179- 185, and 194-200 of the record of a ppeal. H e submits that t he said receipts antount to contract of sale and purchase, on behalf of the Vendor and Purchasers. That the fact that contracts of sale at pages 201-227 may not have been signed on behalf of the Vendors does not mean that there was no contract of sale, 111 view of the fact that there are documents, in the form of receipts, by the Vendor's Advocates, relating to the sa le. In reply, on be half of the Respondent, Mr. Mosha submits that Mr. Lwatula, who was appointed as a Trustee of Mrs. 0Risy Butts ·' Will., did not h ave the right. lu sell as Lhu.ispositions of . . . ~~~~-- .· . ' .. th~ vririrn.ts shops _on the :tv'lonze property w~rc carr.icd::::ffH t.: . . =- ::. - -= , .. ,. b etween 1980 and 198 1; ,;,vhilst his na111c was included on the Certifica te of Title in 1983. That 111oreover, at the 1.irne of s aid d isp ositions , Plot iJ 0~, a.s it is kno\vn, was not in existence, as · ····the consolidatim.1. of Plots Nun1bers· 1 ·,· 2 an~d--3~-:rvtonze·~-was 0111y · ·· -. J P-122 finalised in 19 86, on lhc s tre ngth of lhc forged Deed or Surrender. That one vvond ers about the particulars of the proper ties tha t Mr. Lw atula supposedly sold. Therefore, he cou ld pass n o Title to any of the Appella n ts. Accordingly, the learned tria l Judge correctly observed that Mr. Lwatula was not entitled to sell the property in 1980 a n o 1981 and t hat the Responch=.:n1. had an interest in the prop erty, ns the d aughter of Mr. Jame8 Anthony Butts, t he join t owner of the prope r1y and that she held a p ow er of Attorney from her fa ther over the property. We have considered ground three and t he submissions of Counsel. As we see it, there are two issues in ground three. One is whether the receipts between Ellis and Company and the Appellants, constituted a note or memorandum to satisfy Section 4 of the Statute of Frauds 1677. That Secl·.ion requires that a contract of sale of fond be in writing. Second is whet.her Mr. Charles Michael Butts and Mrs. Joyce Margaret Butts> as beneficiaries of the r esid ue of the estate of Mrs. Daisy Butts, under her Will, were entitled to instruct Ellis and Cotrtpany, to sell lhe Mon~e .. Qt<;>per ly. ·---· --~-==-=- - - - ---·· . - With regard to the fi.rst issue., the letter a t p age 113 of the r e cord of 8.ppeal establishes t hat on 2 g tb Angust 1979, Mr. Ch,:1rlet; !v'lich,H~l. l:.h.1tts nnd MI s . :Margaret Joyce BuU::i iristruc1.cd -Ellis--a.11.--cl Co1npany to sell the prope rties in Monze. The p a ge shows tha t Lh ey d id s o a.s benefic iaries of the l'Csid u c or e sta te of th e la te fVIrs. D aisy B u tts, u n der h e r \Mill. On this very iss ue , two cases provide guidance. Thes e are Zambia Building and Civil Engineering and Contractors Limited v Georgopollos (1) and Wesley Mulungushi v Catherine Chomba (2). The firs t ca se held a s follows :- ''It is well settled that the memorandum required by the Statute of Frauds need not be in any particular forms and ,nay be constituted by two or more documents which are clearly connected by reasonable inference." Th e second cn.se held tha t for a not e or memorandun1. to s atisfy Section 4 of the Statute of Frauds 1677, the a grcc1nent itself need not be in writing. l\ nole or n1c n1.orandun1 of it is sufficient, -provided t hat it contains all the muterin l terms of the c ontracl, such as nan1.es, or adequate id en tification of the SlJhjP.ct matter nnd the nature of the corrn1dc1·:-1ti o n. ln ~ . appeal) following these two c~scs,-w..c agree. with Mr. ~ulu that the receipts at pages 179 to 185 a nd 194 to 200 1 constitute a note or memorandurn to s atisfy Section 4 of the Statute of Fraud 1677, so as to constilu le contracts of sale of · ·-la·nd· to whic·h they reh~.t(-:: Tl1cy s1Yecifyth.e narnt=s of the --1 ,. purc hasers. They adc q1 .w tcl_y idc111 il~y rh c s u bjc cl m a tt.c 1· - i .c . the shops on Stand No. 403 , Mon1/,C. They s late lhc n a ture of the consideration -· i. e. purchase prices for lhc shops in question. The people w ho p a id the money on the receipts arc the Appellants. They were offered sale of the shops by Ellis a nd Company, on instructions of Mrs. Margaret J oyce Butts and Mr. Charles Michael Butts: a s beneficiaries of the r esidue of t h e estate of Mrs. Daisy Butts, under her Will. The learned trial Judge erred in law to the extent h e h eld that there were no contracts of s ale, s olely on the basis tha t the draft formal contracts of sale al vages 201 to 227 of the record of ;1ppeal were n ot signed by Mr. Charles Michael Butts a nd Mr. Mwenya Lwatula, v1ho appear as Vendors therein. It is quite a n other n1atter as to whether Mrs. Margaret Joyce Butts and Mr. Michael James Butts were entitled, as b en e ficiaries of Mrs. Daisy Butts' Will, to instruct Ellis and Company to sell the shops. And this aspect will be dealt with when we con s ider the second issue under ground three . As regards the second issue under this grou nd, we r epeat . . .- -~~ ~~-·- · ···- · · what we said in grounds one, two, four a n d six that Mr. Charles - ··· . ..,:~ ~: Jarnes Butts and M~s. fy.l;argarct ,Joyce Butts, as b cnefici§F_~ ~;"':' _________ _ : f the residue of t h e estate of Ivlrs . Daisy Butts under her Will, had no in terest in the property in disp u te. Th e refore, they were not entitled to instruct Ellis and Company to sell the p r operty. In effe-ct~ the contracts \ve1-e not-valid [or· lat k of aut ho1"ity on the part of the vendors. We have reached at the san1e conclusion like the learned tria l Judge , but for a different reason. /\ccordingly, grounds five and seven fail. ?125 Ground eight atta cks the r eliance by t he lear ned tria l J udge on the Ruling of the Lands Tribu nal, which rem oved Mr. Lwatula, S tale Counsel, as Trustee, from the estate of Mr. Fredrick Butts. On this ground, Mr. Zulu subn1its tha t the Lands Tribunal h ad no authority to en t ertain the Res p ondent 's ap plica tion , as the property in dispute was on the Certificate of Title . In su pport of h is submission, he referred us to Judgment No. 16/2005 of this Cour t , in which we s aid: "We have said in many of our decisions that the Lands Tribunal has no jurisdiction to entertain a complaint over land if either part to the complaint has title. The only Court that has legal authority to order the Chief Registrar of Lands and Deeds to rectify the Register and cancel a Certificate of Title is the High Court .... with these comments_•~,,.,We declaJe the~proceedings in the L ~ nds~ . . ~ ==::.. Tribunal a nullity, for la.ck_of-jtl;ci,sdic.tion.. Consequently, we decline to entertain the appeal because it ts incompetent and misconceived". (Un fortunately, the learned State Counsel did not give u s the names of th e parties to the case. And it is not reported). - - - - - - -- - ----- - - I-le subn1its thrtt in v ic,v of lh c a b ove decision , [Vli . Mwcnya L\vatu1a should be a Trustee of Mr. Fre drick Butts . Tha t Mr. Lwatula should not h ave been removed by the Lands Tribunal, as a Trustee and substituted by the Respondent, even on the Certificate of Title. He points out that the Respondent testified that currently the Title to the property is in her name. She did not say that the property was jointly registered with Mr. Ch;:\r les Michael Butts, her uncle. He vvond crs how she removed Mr. Charles Michael Butts' name from the Certificate of Title al page 152 of the record of appeal. On the time: factor, he argues th::1t, on the evidence, in 1980 and 1981 , Mr. Lwatula was not a Trustee but he was selling as an Advocate, whose firm, Ellis and Company, was instructed by the beneficiaries, Mr. Charles Michael Butts and Mrs. Margaret Joyce Butts, as per letter at page 113 of the record of o..ppcaL That he was aIJpuinLecl a Trustee by Mr. Charles Michael Butts in 1983, 88 p er pages 153 to 15 7 and page 305 of the r ecord of appeal. He subn1its that this appointment was valid because at the materi;::il tfrn e, Mr. .....fliarles fy!ir.hael Bults was the orµy . T~ ~.ec of Lh.e estate of his fathe_r. ~ lrs Daisy Butts had died in l 9 74~d Mr. James Anthony Butt~ was away in 8razil. In re.ply on behalf of the Respondcnt 1 rv1 r. Mosha Sl..lbn1its U1at Mr. Lwatula 1 8 appointment as a Tr ustee and hTs-·rc1n·oval - - -- - -- - -- - - - ...., a.s snch by the Lands Tribuna l bccornL::s irreleva nt, i11 1ighl or the fact that he had no capacity to s ell the properties in issue frorn the onset. P127 We have considered this ground and the argun1.ents thereon. The land in issue has a Certificate of Title. On the authority ~it~rl hy ·. Mr. Zulu, and other[; before iL> \Ve agree \vith hirn that the Lands Tribunal had no jLtrisdict.ion to entertain an application over the property and to remove the name of Mr. Lwatula fro1n its Cerlifkale. Accordingly, we declare the proceedings of the Lands Tribunal over the property, a nullity, for lac;k of jurisdiction. True, the Respondent had a valid grievance over the property. But she should have gone to the High Court, the correct forum, for redress. As things stand now, the Monze property is still jointly owned by the two brothers, Mr. James Anthony Butts and Mr. Charl~s Michael Butts, by virLue of the Will of th~fr 1::it.e: father. Indeed, this is confinnf'.d by the Df:ed of appointrnent of a. new Trustee, Mr. Mwenya Lwatuh~, at paget; 1 S'.1 to 1 57 of the record of appeal. Th e Deed in question was dra11V:Q.. _bv _ EJlis ai:i.d .. - . --.--:.:::'.. J~=- . . ~~=--=--~- . Company 011 · 3P1 O~L1s1lg-~r _ 1983... Accordingly, we ~llovrt;;J_:.;;;;;;. .. • • • . ·- •-::I • ~a-=.r l" ground eight of appeal.~. The effect is that the narnc of Mr. Lwatu1a; as a Trustee, should h~ restored on the Certificate of 'T'it.l~ lo I hP. property. Since the nmue of the Res ponden t i s now on the Certificate of Title; M1~ Lwatula will join here thereon . Ground nine says that the learned trial J udgc was wron g at law by failing to find t hat on the facts of th e case > the Appellants may have a cquired title by pres cription or adverse possession. On ground nine, Mr. Zulu submits that on the facts of this matter, the Appellants a cquired Title to the property in dispute by prescription or adverse possession. That this is so because th ey occupied lhe property for about 30 years. He adds that the lea rned trial Judge did not rnakc a finding as to the effect of s ~clion 5 of the Act on the beneficiary interests of the two sons of Mr. Butts Senior, in his Will or on the effect of Mrs. Daisy Butts' Will, on the beneficiary interest of Mr. James Anthony Butts, the father to the Respondent. He submits that had the lea rned trial Judge considered t.he effect of the Act on the dis positions in the two Wills, he would have come to the sau1e conclusion as his earlier submission and the t estimony of Mr. Lwatula, at. pages 304 (22-28) and 305 (3-5). At those pages, Mr. Lwatula gave opinion evidenr;e th a t by virtue of Section 5 of ~:~ lhe Act, the interests of th~. two son s in _the property fell off in 1970. ~B/:.t the propert~y th'Q~ .:V~stGfkd,n 1\1rs_L . Daisy [ktlts absolutely. Further that in the residue of her Will, Mrs. Daisy :.a..:.= ~ • --·-·• I Butts b equeathed the p roperty in question to Mr. Charles Mich:lel Butts and his wife, Mr s. Margaret J oyce Bults. ·-··--- · ... .: - . - , . - In rcspor1sc on beh a lf of t:hc Eespondent., Mr. Mosha submits that the learned trial Judge vvas not wrong in not finding in favour of Lhe Appe llants that they acquired Title by prescription or a dverse p ossession, for two reasons. One 1s that the Appellants failed to raise the issue in the Court below. Second is tha t Section 35 of the Lands and Deeds Registry Act expressly p rohibits the a cquisition of title by a dverse p ossess10n or p r escription, with r egard s t o lan d that has t itle d eed s. We h ave c onsidered ground 9 and h ave louk ed a t Se ction 3 5 of the Lands and Deeds Registry act. It provid es as follows :- "35. After land has become the subject of a Certificate of Title, no title thereto, or to any right, privilege, or easement in, upon or over the samet shall be acquired by possession or use adversely to or in derogation of title of the Registered Proprietor." We agree with Mr. Mosha that Section 35 of the Lands and Deeds Registry act, CAP 185 of the Laws of Zambia expressly p r ohibits acquisition of title by p rescr iption or adverse possession, to land \\rhich i8 the 8ubject of 3 Certificate · of Title-.~;·. The Hiiid in dispu Le here is tffc .. sulJJ~~t of a C~rtificate of Tille. · ,._ ··- As io lhe expert opinion evidence of Mr. Lwatula on the effect:-of Scetien 5 or the Act 1 t>n the beneficiary -interest-of the . ...,, ...... - - - - - - - -- - P130 two sons , \. Ve nolc that in J u ne 198 3, he had expressed a v1e\v which is completely the opp osite of what he said in Co u rt on 24Lh January 2006. At page ] 62 of the record of a p pea l is a lett er he wrote to Mr. Cha rles Mich ael Bu tts, on 2 3 rd J u n e 19 83. In tha t letter, h e s aid t h at the Mon ze prop erty w a s jointly own ed by Mr. Cha rle s Michael Butts a n d Mr. J a m es An thony Bu tts. The letter in que stio n rea ch, as follows: - "ELLIS & COMPANY Advocates, Solicitors and Notaries PO Box 31902, Farmers House, Cairo Road, LUSAKA, ZAMBIA BB.697A/MGM/MN 23rd June 1983 Mr. Charles Michael Butts Plumtree Hotel Po Box 24 PLUMTREE ZIMBABWE Dear Sir, RE: STAND NO. 403 MONZE (FORMERLY PLOT NOS 1 & 2 AND THE R/E OF PLOT NO. 3 We have received instructions to attend to the sale of the various subdivisions of Stand No. 403 Monze. Plot Nos. 1 and 2 and the Remaining Extent of Plot No, 3 have been consolidated to form Stand No. 403 Monze. Plot Nos. 1 .and 2 am:1--the R/E of Plot No. 3 will therefore ha',L8;. W b e surrendered to fhe' State and fresh lease given to the State for Stand N:.:o:.:.·= =-~ ::.-. 403 before the various -suboi-viSTtmS c an b e assigned. Since this property is Jointly owned by yourself and James Anthony Butts both your signatures are required to be on all the documents that have been and will be prepared - J . A. B utts has given General Power of Attorney to someone who resides in Zarnbia, thus th ere is someone here to sign all · doc·ume·nts-:--on his behalf. We·- are her eby suggesting that you also- given Power of Attorney to someone who resides in Zambia to execute all the ........ _ -.. I n ecessary documents on your behalf as we arc unrJb!s to proceed any further in this matter . A G e neral Pow er of Attorney is e nclosed herewith. You a re r equired to fill in the blank spaces, as indicated in p e ncil, and execute it in the presence of a Notary Public. Thereafter, please r eturn in the executed document to us. P131 Please let us have a very early reply. Yours faithfully, ELLIS & COMPANY SIGNED" Furth er, at pages 1 53 to 157 of the record of appeal is a Deed of a ppointment of a n ew Truslee. It is dated 3 1 s L October 1983; i.e. 9 years after Mrs. Daisy Hutts had died. (She died on 3 rd F ebruary 1974). It was drawn by Ellis and Company. By that Deed, Mr. Ch arles 1'1icha el Bulls, appointed !vlr. Mwenya Lwatula, of Ellis and Compan y: "to be a. Ttustee of the trusts of the Will relating to the said property described in the schedule hereto in place of the said Mrs. Daisy Butts and James Anthony Butts". The Will referred to, is that of Mr. Fredrick Charles Butts, who died on loth Oclober 1961. This is the Deed of a s per page 154. The property mentioned in Appointment, is the Munze property in dispute. 'l'hiR i.s as per pa.,ges 155 a nd 156 of flthe, ree__e:.a-;.0f appeal. The 4 t h recital on - - ,_p_a p;~4~ says:.:. The said Llanies Anthany-fhi.tts caiinot now be found and is verily believed to have left the Republic of Zambia, in or about 1976, without leaving any forwarding or other address!..." - -' By this Deed, Ellis and Co1npany acknowledges that as at 31 st October 1983, fv!r. Jam es An thony S-u tts , still had an interest in the Monze property , by virtue of t he Will of his late fa ther, dated 22nd September 1956. ?132 Additionaly, there is one issue that needs 1nention here. This issue 1nay have a bearing on the interpretation in Court , p laced by Ellis a nd Compa ny, on Section S of th e Act, in favour of the Appellan ts. At page 167 of the record of appeal is a letter addressed to Messrs Ellis and Company. It alleges that one of the Senior Partners in Ellis and Company is personally intere sted in one of the Plots comprised in the Monze p roperty. The Partner in question, appears to be the 7 th appellant . The letter reads as follows:- "M. A. PATEL & COMPANY Advocates: Notaries and Commissioners For Oaths 1-4 Codrington House, PO Box 30645, Nkwazi Road, LUSAKA, ZAMBIA Tel: 221484; Res: 278572 LJS/gk/B.1 B 2rh May 1992 Messrs Ellis & Company Farmers House Cairo Heed LUSAKA Dear Sir, RE: ~. UTTS ESTATEMSTANP NO. 403 MONZ~ --We thank-you for-your _l_etter B8.607/CHC/pcm, -dated-the 8th May 1992 .. - 1 ....... ~ - P133 Wa regret to advise that we do not seem to be rnaking any progress in this matter. Th e best. thing to do is to ask the Court to make a ruling on the legality of what has since transpired. As advocates you have not been able to advise us on whose behalf you act. Messrs. Webb, Low & Barry of Zimbabwe, acting on behalf of one of the trustees of the Butts Estate, have failed to have yourselves account to them; our client does not seem to be doing any better either. To whom, as Advocates, are you accountable? We notice, with regret that one of your senior partner is personally interested in one of the plots comprised in Stand No. 403, Monze. If this is true, which we think it is, then your firm must disqualify itself from acting on behalf of the '4 Estate". Please advise, us by return of post if it is your wish for us to proceed to Court or you will voluntarily disqualify yourselves. Yours faithfully, M. A. PATEL & COMPANY SIGNED AND RECEIVED AND STAMPED BY ELLIS ON 28 MAY 1992." As we earlier said on grounds one , two, four a nd six, we do not accept the interpretation placed by the Appellants, on the Act, in r~l~tion to the beneficiary interests of the two Butts brothers, in the Monze property, unde r the Will of their late father. For these reasons, we d1!=;m iss ground 9 of appeal. On the totality of issues, this appeal is hereby disn1isscd. We award costs to the Respondent, lo be taxed in default of agreement. ··~ ' , ·-·-- ~.·:·=·~-=~ •:-::-. - P134 ..... :~l1~~V., .... E. L. SAKALA CHIEF JUSTICE L. P. CHIBESAKUNDA SUPREME COURT JUDGE - - --, - - - - - - - - - -- --