Gilbert Nyendwa v Wickson Siwale and Ors (APPEAL NO. 47/2024) [2024] ZMCA 330 (4 November 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 47 /2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: GILBERT NYENDWA APPELLANT AND WICKSON SIWALE THE ATTORNEY GENERAL THE COMMISSIONER OF LANDS 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM: NGULUBE, MUZENGA AND CHEMBE, JJA. On 14th October, 2024 and 4th November, 2024. For the Appellant : No appearance For the Respondents : No appearance JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. Antonio Ventriglia and Manuel Ventriglia vs Finsbury Investments Limited Appeal Number 02/ 2019 2. Peter Chinyama vs Legina Hamukwale Appeal Number SCZ/ 10/2 0 2 1 3. Motor Vessel Lillians vs Caltex Oil (Kenya) Limited, Civil Appeal Number 50 of 1989 4 . 5. Anti-Corruption Commission vs Barnnet Development Corporation Limited (2008) ZR 69 Vol 1 Fabian Musialela vs Evans Chipman (201 OJ HPC/ 026 6. Daniel Mwale vs Njolomole Mtonga, SCZ Judgment Number 2 5 of 7. William David Carlisie Wise vs E . F. Harvey (1995) ZR 1 79 8. Peter David Lloyd vs J. R. Textiles Limited, SCZ/ 8/ 201I 2011 Legislation referred to 1. 2 . The Statute of Limitation 1939 of England The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 This appeal arises from the High Court Ruling delivered on 6 September, 2023 by Honourable Justice Charles Zulu. By that Ruling, the court found that the action commenced by the first respondent, who was the plaintiff in the lower court, was not statute barred. -J2- 2.0 BACKGROUND TO THE APPEAL 2.1 The background to this appeal is that on 2 December, 2021 the plaintiff (first respondent herein) commenced an action by writ of summons and statement of claim seeking the following reliefs- 1. A declaration that the plaintiff is the legal owner of Lot No. 3065 /M Lusaka; 2 . Cancellation of Certificate of Title Number 23539 erroneously issued to the first defendant; 3. An order that the third defendant issues a certificate of title in the plaintiff's name; 4. An order for injunction restraining the first defendant or his agents or servants or whomsoever from trespassing on the plaintiff's property until the determination of the matter; 5. Damages for trespass; 6. Damages for mental anguish; 7. Costs; and 8 . Any other relief the court may deem fit. 2.2 In the statement of claim the plaintiff averred that sometime in 1986, he was allocated a field by a Mr. Choongo where he carried out some farming activities in the area now known as Lot 3065/M, -J3- Lusaka. Sometime in 1986, the Ministry of Lands re-surveyed the area and the plaintiff applied to be allocated the land that he had been farming on. He later built a house on the land and started living there. 2 .3 In 1990, the plaintiff was offered the land in issue through a letter of offer from the Commissioner of Lands. In July, 1990, he was informed that a lease would be prepared on condition that the h e pays the fees . The plaintiff complied and he was granted a 99 year lease relating to the land in issue. 2.4 The plaintiff averred that in 1994, Lawrence Nyendwa, the first defendant's father alleged that the property belonged to him. He demolished the house that the plaintiff built on the land and commenced a matter in the High Court under Cause Number 1994/HP/ 3995, but Lawrence Nyendwa passed on before the hearing of the matter. The matter was accordingly adjourned sine die on application by the administrator of Lawrence Nyendwa's estate. 2 .5 It was averred that in 2002, the first defendant, as administrator of the estate of Lawrence Nyendwa commenced an action under Cause Number 2002 / HP / 1125, which was subsequently -J4- discontinued. The plaintiff later discovered that the 1st defendant was issued with a certificate of title for the land in issue. Consequently, the plaintiff commenced this matter on 2 December, 2021 seeking, inter alia, the cancellation of the first defendant's certificate of title. 2.6 The first defendant filed a Defence and Counterclaim on 5 August, 2022. It was averred that the plaintiff lived on the first defendant's property illegally and that he is not the owner of the property. It was averred that the first defendant's father was issued with a certificate of title in 1994. He denied all the allegations contained in the plaintiff's statement of claim. 2.7 The first defendant filed a counterclaim seeking- 1. Damages for trespass to Stand Number 3065/M, Lusaka; 2. Damages for mental anguish, inconvenience and loss; 3. Damages for the injunction placed on the property by the plaintiff; 4. An order that the plaintiff vacates Stand Number 3065/M Lusaka; 5. Interest on the sums found due; 6. Costs. -JS- 3.0 APPLICATION FOR AN ORDER TO DISMISS MATTER FOR BEING STATUTE BARRED 3 . 1 On 19 June, 2023, the first defendant filed Summons accompanied by an affidavit in support for an order to dismiss the plaintiff's matter for being statute barred. 3.2 In the accompanying affidavit in support, the first defendant deposed that his father, Lawrence Nyendwa obtained a title deed for Stand Number 3065/M, Foxdale Lusaka. It was deposed that the plaintiff has been aware of the said certificate of title since 1994. It was further deposed that Lawrence Nyendwa sued the plaintiff but in 1994, the action was dismissed. In 2002 another action was commenced under Cause Number 2002 / HP/ 1125, but it was discontinued by the first defendant. It was deposed that since this cause of action commenced in 1994, it cannot be entertained by the court as well over 12 years have elapsed since the matter commenced. The first defendant urged the lower court to dismiss the matter for being statute barred. 3.3 The plaintiff filed an affidavit in opposition and deposed that he was offered Lot Number 3065 /M by the Commissioner of Lands in 1990. He was granted a 99 year lease commencing on 1st June , 1990. Throughout the years, notwithstanding a number of actions -J6- that were commenced by the first defendant and his father, the plaintiff continued to occupy the land in issue and continued to pursue the Commissioner of Lands to have a certificate of title issued to him. He later learnt that a certificate of title was issued to the first defendant when the plaintiff held an earlier lease for the property. 3.4 The plaintiff deposed that the matter was not statute barred as the first defendant had commenced several matters which were discontinued, leaving the land dispute unresolved. The plaintiff deposed that the matter ought to be determined on the merits so that the court can establish the owner of the property. 4.0 CONSIDERATION OF THE MATTER BY THE LOWER COURT 4 .1 The lower court considered the first defendant's application and concluded that the action commenced by the plaintiff, which the first defendant seeks to dismiss for being statute barred, falls under section 3 of the Limitation Act, 1939. The court stated that the time limit within which an action premised on land recovery subsists is twelve years from the time when the cause of action arose. The court stated that the action is against the first -J7- defendant for the certificate of title that was issued on 13 September, 2021 . 4 .2 The court found that the cause of action against the first defendant commenced from the date when he was issued with the certificate of title in 2021 and not in 1994, when his father, Lawrence Nyendwa commenced a matter which was subsequently discontinued. 4.3 The lower court opined that the action commenced by the plaintiff was not statute barred as the plaintiffs challenge is against the issuance of the title deed to the first defendant in September, 2021. The lower court dismissed the preliminary issue raised by the first defendant for lack of merit, with costs to the plaintiff. 5.0 THE APPEAL 5.1 The first defendant was dissatisfied with the Ruling of the lower court and appealed to this court, advancing three grounds of appeal couched as follows- 1. The learned trial Judge in the court be low erred both in fact and law when he did not dismiss the matter for the plaintiff after finding that the plaintiffs claim fell within section 4(3) of the Limitation of Action Act, 1939, of England and that it was statute barred. -J8- 2 . The learned Judge erred in law and fact when he held that the cause of action was against the issuance of the title to the appellant and not who was the rightful owner of the property. 3. The learned Judge erred in law and fact when he based his decision to dismiss the preliminary issue based on the 13th September, 2021 title issued to Gilbert Nyendwa which was a sub division when there was a title dated 16 March, 1994 and 14 November, 2003, issued in the name of Lawrence Nyendwa and Gilbert Nyendwa, respectively. 6.0 APPELLANT'S HEADS OF ARGUMENT 6 . 1 The appellant filed heads of argument in support of the appeal. 6. 2 Ground one and three were argued simultaneously because the appellant's counsel was of the view that they are interrelated. 6.3 The court's attention was drawn to section 4 subsection 3 of the Limitation of Actions Act which provides that- "No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person; provided that if the rig ht of action first accrued to the crown or a spiritual or eleemosynary corporation sole through whom the -J9- person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the crown or the corporation sole, or of twelve years from the date on which the right of action accrued to some person other than the crown or the corporation sole, whichever period first expires." 6.4 It was submitted that the action by the plaintiff in the lower court falls within section 4(3) of the Limitation Act as the cause of action brought by the plaintiff in the action in the lower court commenced in 1994 when the first title to the property was issued in the name of Lawrence Nyendwa. 6.5 It was submitted that the property was transferred by deed of assent to the appellant in 2003 as seen on page 214 paragraph 5 of the record of appeal. It was contended that the issue of limitation goes to the root of jurisdiction of the court and ought to be settled first. 6.6 The court's attention was drawn to the case of Antonio Ventriglia and Manuel Ventriglia vs Finsbury Investments Limited1 , in which the Supreme Court dealt with the issue of jurisdiction. The court agreed with the respondent and stated that it had -JlO- jurisdiction to entertain the appeal as there were although legally flawed circumstances which characterized its launch before the court. 6 . 7 The case of Peter Chinyama vs Legina Hamukwale2 was referred to, where the Supreme Court emphasized its earlier holding on jurisdiction. Counsel referred to the Kenyan case of Owners of the Motor Vessel Lillians vs Caltex Oil (Kenya) Limited3 , where the Supreme Court held with approval in the Ventriglia case that a question of jurisdiction ought to be raised at the earliest opportunity because jurisdiction is paramount. It was submitted that where there is no jurisdiction, proceedings have to be discontinued. 6.8 It was contended that the learned Judge in the court below erred in law and fact when he declined to dismiss the first respondent's action for being statute barred after finding that the matter fell within section 4(3) of the Statute of Limitation 1939 of England. We were urged to allow grounds one and two of the appeal. 6.9 Counsel went on to argue that the appellant was issued with certificate of title in 2003. -Jll- 6.10 In arguing ground two, it was submitted that the issue before the court should have been who is the title holder of the property and not whether the cause of action was against the issuance of the title to the appellant. The case of Anti-Corruption Commission vs Barnnet Development Corporation Limited4 was referred to, where the Supreme Court held that under Section 33 of the Lands and Deeds Registry Act, a certificate of title is conclusive evidence of the ownership of the land by the holder of a certificate of title. 6.11 The case of Fabian Musialela vs Evans Chipman5 was referred to, where the issue of claiming title to property in the absence of a certificate of title was considered. The court held that due to the absence of a certificate of title, the claim could not be sustained. It was contended that the appellant is the owner of the property in issue , as evidenced by the print out from the Lands and Deeds Registry, at page 213 of the record of appeal, which shows that the appellant has been the owner of the property since 2003. We were urged to allow ground two for the aforestated reasons. We were also urged to allow the appeal. -J12- 7.0 RESPONDENT'S HEADS OF ARGUMENT 7.1 The first respondent filed heads of argument and responded to grounds one, two and three simultaneously. It was submitted that the learned High Court Judge was on firm ground when he dismissed the preliminary issue that was raised by the appellant based on the Limitation Act, 1939, for lack of merit. 7.2 The case of Daniel Mwale vs Njolomole Mtonga6 , was referred to, where the Supreme Court held that- "Time begins to run when there is a person who can sue and another who can be sued when all facts have happened which are material to be proved to entitle the plaintiff to succeed." 7.3 It was argued that the certificate of title that was issued to the appellant on 13 September, 2021 was erroneously issued by the Commissioner of Lands. It was contended that the action was not statute barred as the cause of action was against the appellant and not his late father. 7.4 It was argued that the appellant and his late father sued the first respondent several times and if they had not been discontinuing the matters that they commenced, the matters would have been determined on the merits. -J 13- 7.5 It was contended that the first respondent has been is possession of the property in issue since the 1980s and that the appellant should have commenced an action against the first respondent and seen it to its logical conclusion instead of raising a preliminary issue in an effort to have the matter dismissed. We were urged to dismiss the appeal for being frivolous, vexatious and lacking merit. 8.0 CONSIDERATION OF THE MATTER AND DECISION OF THE COURT 8.1 We have carefully considered the evidence on record, the parties' respective arguments and the ruling being impugned. We shall consider the first, second and third grounds of appeal together as they are interrelated. The contention of this appeal relates to the jurisdiction of the court due to the limitation of time, as the substantive matter in the lower court has not yet been heard and determined. 8 . 2 Ground one, two and three attack the lower court for refusing to dismiss the matter. 8.3 In the case of William David Carlisie Wise vs E. F. Harvey7 , it was held that- -J14- "A cause of action is disclosed only when a factual situation is alleged which contains facts upon which a party can attach liability to the other or upon which he can establish a right of entitlement to a judgment in favour against the other." 8.4 The lower court, in its Ruling was of the view that the cause of action began to run from the date the first defendant (appellant herein) was issued with the certificate of title, in September, 2021 . 8 .5 The issue that this court must determine is when the cause of action arose in this matter. In his statement of claim the first respondent deposed that the first appellant's father, Lawrence Nyendwa surfaced in 1994 and made a claim to the land that the first respondent was occupying. The said Lawrence Nyendwa commenced an action to evict the first respondent from the land in issue. However, the action was not determined and soon thereafter, Lawrence Nyendwa died. 8.6 His son, the appellant was the administrator of the estate and he pursued the eviction of the first respondent from the land. 8.7 The first respondent has been in possession of the land in issue since the 1 980s and is in possession of a 99 year lease for the property. -JlS- 8.8 In the case of Peter David Lloyd vs J. R. Textiles Limited8 , the Supreme Court h eld that- "What it means is that adverse possession cannot itself extinguish the registered proprietor's title at the Lands Registry and it becomes immaterial whether the registered proprietor has made any attempts within the prescribed 12 years to commence legal proceedings for the purpose of terminating the squatter or trespasser's possession." 8.9 The appellant sought to have the first respondent's action dismissed for being statute barred. The appellant is a holder of a certificate of title which the first respondent seeks to challenge. Section 35 of the Lands and Deeds Registry Act provides that- "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 same, shall be acquired by possession or user adversely to or in derogation of the title of the registered proprietor." 8.10 The rules of limitation as provided for under the Act are the statutory time limits for bringing civil proceedings. The statute of Limitation provides for statutory defence, specifically, Order 18/8 -J16- RSC provides that it is for the defendant to plead specifically any relevant period of limitation. Order 18/8(1) RSC provides that- "A party must in any pleading subsequent to the statement of claim plead specifically any matter for example, the expiry of any relevant period of limitation, fraud or any fact showing illegality." 8 . 11 We are of the view that time starts to run on the first day of which the claimant's cause of action accrued, meaning the date on which everything had occurred, to bring the particular claim. 8.12 The learned trial Judge is attacked for declining to dismiss the first respondent's action for being statute barred after finding that the matter fell within section 4(3) of the Statute of Limitation 1939 of England. 8.13 In our view, the lower court considered the relevant provisions of the law in arriving at the decision being impugned. The learned Judge considered the arguments and the affidavit evidence and was of the view that the cause of action commenced when the appellant was issued with the certificate of title and not in 1994 when his father commenced a matter against the first respondent, which was subsequently discontinued. -J17- 8. 14 The lower court then dismissed the preliminary issue raised for lack of merit. We see no basis to fault the learned trial Judge. We are of the view that the issues herein can only be resolved at the trial. In our view, the learned Judge gave the parties an opportunity to specifically adduce evidence at the trial to enable the court make a proper determination. We cannot fault the lower court for refusing to dismiss the cause of action. In the view that we have taken, we find no merit in the three grounds of appeal and they are accordingly dismissed. 9.0 CONCLUSION 9.1 The matter is sent back to the High Court for hearing before the same Judge. The net result is that the appeal fails in its entirety. We award the 1s t respondent costs to be taxed in default of agreement. P. C. M. NGULUBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE Y. CHEMBE -J18-