Hope Foundation for Women and Children v Munalula Linyati and Ors (Appeal No. 235 of 2021) [2023] ZMCA 311 (4 December 2023)

. II IN THE COURT OF APPEAL HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: Rt.f\JSLIC OF lf\A,t cou R1 OF APpf 81-4, -'1t ' .. ;{ ._ Appeal No. 235 of 2021 OVIL REGISTRY 1 . Box 50067, LUSI'-'<- . ·O ~ . HOPE FOUNDATION FOR WOMEN AND CHILDREN APPELLANT AND MUNALULA LINYATI SEPISO SIMONDA 15r RESPONDENT 2ND RESPONDENT (Administrator of the estate of the late Simonwa Simonda) ATTORNEY GENERAL 3RD RESPONDENT CORAM: CHASHI, MUZENGA AND PATEL, JJA On lih October & 4th December, 2023 For the Appellant: Ms. N. Adam with Mr. B. Chipopo Messrs. D. Findlay & Associates For the 1st & 2nd Respondent: Mr. M. Kasaji For the 3rd Respondent: Mr. P. S Phiri, Sen ior State Advocate Messrs. C. L Mundia & Company Attorney General' s Chambers JUDGMENT Patel, JA, delivered the Judgment of the Court J1 Cases referred to: 1. Hope Foundation for Women And Children v Munalulua Linyati, & 2 others CAZ Nos. 201/2019 & 213/2019 2. Munalula Linyati v Hope Foundation for Women and Children - SCZ Appeal No. 171/2006 3. Hope Foundation for Wome n and Children v Munalula Linyati- SCZ Appeal No. 70/2015 4. Mususu Ka lenga Build ing Limited and Others v Richman's Money Lenders Enterprises- SCZ Appeal No. 4 of 1999 5. Oscar Chinyanta and 31 Others v Alasia Building Construction Limited and TAP Zambia Limited- SCZ Appeal No. 158 of 2015. 6. Crossland Mutinta and Bashir Seedat v Donovan Chipanta -SCZ Appeal No 53 of 2018 7. Sepiso Simonda (Suing as Administrator of the Estate of the late Simonwa Simonda) and Golden Mandandi (sued in his personal capacity as Minister of Works and Supply) and the Attorney Gen eral- HP/2000/ 0263 8. Sepiso Simonda (Suin g as Administrator of the estate of the late Simonwa Simonda v Golden Mandandi, The Attorney General and VDF Properties Lim ited -SCZ Appeal No 11 of 2008. 9. Bank of Zambia v Jonas Tembo and Others (2002) Z. R. 103. 10. Southern Africa Trade Limited v Hawkwood Properties Investment Limited- SCZ Appeal No 10 of 2017 11. Mazoka and Others vs Mwanawasa and Others (2005) ZR 138 12. Byrne v Kanweka (1967) Z. R. 105 13. Zambia Safaris vs Mbao {1985) Z. R. (S. C) J2 14. Anti-Corruption Commission v Barnet Development Corporation Limited (2008} Vol 1 Z. R . 69 15. Prisca Lubungu v Obby Kabango and Others, Ndola City Council -SCZ Appeal No. 216 of 2016 16. Moonga & Others v Hamweenda & Others -CAZ Appeal No.18 of 2016 17. Re vs Wykeham Terrace (1971} Ch 204, 209 D-210B 18. Akre ii Zulu v Anna Zulu -SCZ/8/409/2010 19. Chikuta v Chipata Rural Council (1974} Z. R. 241 Legislation referred to: 1. 2. 3 . 4. 5. 6. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia. The Subordinate Court Act, Chapter 28 of the Laws of Zambia. The Rules of the Supreme Court of England, 1999 Edition . The Rent Act, Chapter 206 of the Laws of Zambia and the Rent Rules. The High Court Act, Chapter 27 of the Laws of Zambia. The Lands Act, Chapter 184 of the Laws of Zambia . Other Works: 1. 2. Black's Law Dictionary, 10th Edition by Bryan A. Garner, 2009 Halsbury1s Laws of England, 4th edition, volume 10 1.0 INTRODUCTION 1.1 This appeal needs no introduction, having traversed the length and breadth of the Courts in the jurisdiction . Considering the number of years this action has persisted in the system, it should come, perhaps as no surprise, to see it turn up again, almost like a bad penny. J3 1.2 The history of this matter is well documented, and we can do no better than to recap its historical background from our own Judgment, with the same Parties as in casu, under Cause Nos. CAZ 201/2019 and 213/20191, delivered in response to two composite preliminary applications heard by us in November 2020. The background, in paragraphs 2.1 to 2.8, is an extract, lifted from our said Judgment, to t rack the case at various levels, with the obvious caveat, that reference to page numbers in the Record(s) of Appeal, refer to the Records as were before us in those two appeals cited above. 1.3 This is important to put into context the substance of the appeal now faced by us and to give the Parties the satisfaction that the Court, has, once again, apprehended and fully appreciated the issues that plagued what could have been, a straightforward matter, had it been handled in the appropriate manner. 2. BRIEF BACKGROUND 2.1 "The history of these appeals is that the Appellant and the 1st and 2 nd Respondents are fighting over a house known as Plot No. 4607, Andrew Mwenya Road, Lusaka which was a government pool house occupied by one Simonwa Simonda who died on 8th July 1998. The 2nd Respondent was the administrator of the estate of the late Simonwa Simonda w hile the 1st Respondent was the occupant of the servant's qua rt ers. J4 In 2000, the 2nd Respondent commenced an action in the High Court in his capacity as administrator of the estate of the late Simonwa Simonda against the then Minister of Works and Supply and the Attorney General. He made the following claims; (a) Declaratory order that House No. 7 Andrew Mwenya Road, Rhodes Park be sold to the Plaintiff (b) Damages for trespass, harassment and mental anguish suffered by the Plaintiff and the children of the late Simonwa Simonda by the agents and employees of the Government of the Republic of Zambia. (c) Declaration that the intended eviction of the Plaintiff and the late Simonwa Simonda's family be declared null and void, malicious and ultra-vires the 1st Defendant's demand actuated by ill motives and abuse of power of office. (d) Any other relief the Court may deem fit and appropriate and costs. By Judgment dated 28th November 2003, Mr. Justice T. K. Ndhlovu granted the claims accordingly (see page 249 of the Record of Appeal No. 213/2019). 2.2 On 28th February 2006, the Appellant herein issued originating Notice of Motion against the 1st Respondent for an order to issue a warrant of distress and eviction filed in the Subordinate Court. The affidavit in support at page 233 of the Record of Appeal, deposed to by Joseph lngwe alleges in paragraph 4 that the 1st Respondent had been illegally occupying Plot 4607, Andrew Mwenya Road in Rhodes Park for over three yea rs. This would be since 2003 when Mr. Justice T. K. Ndhlovu JS made an order to the Government to sell the property to the 2 nd Respondent as administrator of Simonwa Simonda's estate. On 10th March 2006 leave was granted to the Appellant to issue writ of possession and eviction (see page 237 Record of Appeal). The order was however, stayed ex-pa rte on 1 ih March 2006. In a Ruling dated 6th April 2006, which is at pages 228 and 229 of the Record of Appeal, the Subordinate Court of the 1st Class presided over by Mr. Richard Choonga, discharged the order of stay of the writ of possession earlier granted and ordered the execution of the orders for vacant possession and eviction granted on 10th March 2006. This Order triggered an appeal to the High Court, which in turn gave rise to an appeal to the Supreme Court, following a procedural issue raised by the now Appellant as to the requirement by the Appellant in the lower court, {1st Respondent), to obtain leave to appeal from the Subordinate Court. In his Ruling dated 5th June 2006, which occurs at pages 252 to 254 of the Record of Appeal, Mr. Justice N. M. Mwanza referred to his Order of 5th May 2006 for the Appellant to seek leave of the Subordinate Court to appeal. The learned Judge confirmed compliance by the 1st Respondent but that the Magistrate did not hear the application for leave. That prompted the 1st Respondent to apply for special leave before the High Court which was refused with the learned Judge advising the 1st Respondent to make an appropriate application before the Subordinate Court and to only renew the same before the High Court if it was refused by J6 the Subordinate Court. Rather than act on the learned Judge's advice, the 1st Respondent asked the learned Judge to review his decision of 5th June 2006. The Learned Judge refused to review his Ruling. 2.3 APPEAL TO THE SUPREME COURT Dissatisfied with the rejection of the review bid by the learned Judge, the 1st Respondent launched an appeal to the Supreme Court. After recounting the historical background of the appeal, the Supreme Court, in its Judgment of 21 st May, 20082 , occurring at page 71 of the Record of Appeal No. 213/2019 opened the Judgment with the following statement running from page 71 to 72 line 5; "When we heard this appeal, we announced our decision allowing the appeal. We set aside the short Ruling of the Appellate Judge dated 29th June 2006 and ordered that the matter goes back to the High Court at Lusaka to be heard before a different Judge. We also ordered that costs abide the outcome of the re-hearing of the appeal against the order of the Subordinate Court" (underling for emphasis). In the last paragraph at page 92 of the Record of Appeal, the Supreme Court concluded as follows: "It is for the foregoing reasons that we allowed the appeal. We set aside the Ruling of the Appellate Judge and sent the matter back to the High Court for re-hearing before a different Judge. It is our hope that all the issues highlighted and in dispute will be pronounced upon". J7 2.4 PRELIMINARY ISSUES Following the order for a re-hearing of the appeal made by the Supreme Court herein before stated; the matter was allocated to Mr. Justice C. F. R. Mchenga SC in 2012. When the matter came up for hearing, Counsel for the Appellant rose on a preliminary issue questioning the regularity of the appeal before the High Court in view of non-compliance with procedure. In his ruling dated 3rd June 2012, the learned Judge set out the issues that the Supreme Court, in its Judgment of 21 st May 2008, had ordered to be considered in the rehearing of the appeal. He refused to pronounce himself on the preliminary issues for the reason that the Supreme Court had already made a pronouncement. 2.5 APPLICATION FOR JOINDER OF PARTY Upon failure of the preliminary objection, the Appellant, on 13th August 2012, filed into Court, a summons for joinder of a party to the proceedings. It was accompanied by an affidavit in support deposed to by Dessislava Findlay, Counsel for the Appellant. In paragraphs 5 and 6 of her affidavit, Mrs. Findlay deposed as follows; 5. That the matter before this Honourable Court involves land being stand No. 4607, Lusaka which land as alleged by the Appellant in his affidavit dated 21 st April 2006 was a subject of dispute between the Government of the Republic of Zambia (Ministry of Works and Supply) and Simonwa Simonda, Sephiso Simonda Administrator of · J8 the estate of the late Simonwa Simonda). A copy of the aforesaid affidavit is now produced and shown to me marked as exhibit DF1. 6. That I verily believe that in the circumstances it is vital that the parties aforesaid namely; the Administrator of the estate of the late Simonwa Simonda and the Attorney General, both be joined to the proceedings herein, so that all matters in dispute may be determined effectually and completely without opening the door for the further litigation over the same issues and matters arising between the parties. In his very brief Ruling dated 24th January 2013, Mr. Justice Mchenga refused to grant the order after making the following statement at page 137 lines 11 to 18 of the Record of Appeal; "I have considered this application together with the contents of the affidavits filed herein together with the submissions and the authorities cited by counsel. I am satisfied that order 14 rule 5 of the High Court Rules is not applicable to this matter as this is not a trial but an appeal. Further, the appeal before me is anchored on whether the correct procedure was complied with when these proceedings were instituted in the Subordinate Court. It is my assessment that the determination of the appeal will not affect the rights or interests of the parties I have been asked to join into these proceedings." J9 The Ruling disenchanted the Appellant who applied for leave to appeal the Ruling to the Supreme Court which was granted on 14th February 2013. A separate application for an order staying further proceedings in the appeal was made on ih March 2013 and it was granted on 13th March 2013. 2.6 IMPLICATION The Order staying the proceedings meant that the appeal against the Ruling of the Subordinate Court made in 2006 would not be reheard as directed by the Supreme Court in its Judgment of 21st May 2008 until this second appeal to the Supreme Court was heard and determined. 2. 7 SECOND JUDGMENT OF THE SUPREME COURT3 It will be noted that in this appeal to the Supreme Court, the dispute was over the joinder of parties which was refused by the Honourable Mr. Justice Mchenga SC. The Supreme Court, however, did touch on the issues that were the subject of contention in the first appeal touching on the non compliance with procedural requirements in the manner the appeal was lodged in the High Court from the Subordinate Court. In its judgment delivered on lih September 2015, the Supreme Court considered the rival arguments by the parties and narrowed them to one question for its determination being; "whether the learned Judge in the Court below was right to decline the application for joinder on the grounds that he stated in his Ruling subject of the present appeal" (see page 287 lines 9 to 12 of the Record of Appeal No. 213/2019) JlO The Supreme Court came to the conclusion that the appeal had merit and allowed it on all the grounds. It accordingly ordered that the intended parties be joined to the proceedings in the lower Court. 2.8 RE-HEARING THE APPEAL With the order to join the intended parties the appeal in the High Court was ready for re-hearing in terms of the Supreme Court Judgment of 21 st May 2008. It must be clearly pointed out that the Supreme Court Judgment of 1th September 2015, did not order a re-hearing but ordered the joinder of the 2nd and 3rd Respondents to the appeal in the High Court which had been stayed pending the determination of this appeal. The order for the re hearing of the appeal is contained in the Judgment of 21 st May 2008 upon the terms and conditions it prescribed'. 3.0 THE APPEAL 3.1 This is now the appeal, (following the Order of re-hearing issued by the Supreme Court in its Judgment of 21 May 20082 th J. Kaunda Newa of 8 July 2021, on the action commenced by the ), against the Judgment of Appellants in the lower Court (The action in the Subordinate Court) against the 1st Respondent, Munalula Linyati, who was in occupation of Stand No. 4607, Andrew Mwenya Road, Lusaka {the property in dispute), as a caretaker, seeking an Order for vacant possession of the said property and an Order for leave to issue warrant of distress by way of Originating Notice of Motion and Supporting Affidavit, (page 265, Volume II of the Record of Appeal) on 28th February 2006, claiming the following reliefs: Jll a) That the Applicant do recover from the Respondent vacant possession of Plot No. 4607 Andrew Mwenya Road; b) That the Applicant be at liberty to issue Warrant of Distress; and c) That the Applicant recover possession of the house known as Plot 4607 Lusaka and evict the Respondent therefrom. The Judgment is noted at pages 9 to 75 in Volume. 1 of the record of Appeal. Part of the historical narration has been captured above but bears emphasis to place the current appeal in context. 3.2 In the High Court, (the Court below), Munalula Linyati was the Appellant. Hope Foundation for Women And Children, Sipeso Simonda and the Attorney General, appeared as the 1'\ 2nd and 3rd Respondents, respectively, (following the joinder application granted by the Supreme Court in its second Judgment3 referred to above.) 3.3 Subsequently, the Appellant filed into court on 10th March 2006, an Ex Parte Summons for Leave to Issue Warrant of Distress and Writ of Possession and Eviction together with Supporting Affidavit which application was granted by way of Order at page 270, Volume II of the Record of Appeal. 3.4 The Respondent, thereafter, obtained an Order dated 17 March 2006, staying the Writ of Possession, before a different Magistrate in the Subordinate Court, and scheduled an inter-partes hearing for 22 March 2006. A copy of this Order is noted at page 271 Volume II of the Record of Appeal. J12 3.5 Following the inter-partes hearing, by way of Ruling dated 6th April 20061 the {Subordinate) Court below, discharged the Order for Stay of Execution and granted an Order for vaca nt possession and eviction to be executed forthwith. 3.6 Dissatisfied with the above state of affairs, the 1st Respondent filed a Notice of Appeal in the High Court, advancing the following grounds of appeal; a) That the Originating Notice of Motion was not regularly issued in respect of the property Stand No. 4607 Rhodes Park, Lusaka. b) That the Court did not take into account the doctrine of res judicata when in fact this matter was decided by the Superior Court, namely the High Court; c) Hope Foundation for Women and Children had no locus standi in the matter, as it did not have any title or interest in the subject matter of the aforementioned property; d) The Appellant was a wrong party against whom proceedings were instituted. 3.7 We have also noted that following the Judgment of the Supreme Court of 17 September 20153 1 which as we have stated, was essentially a judgment on the issue of Joinder, the Court below, allowed the filing of additional facts and evidence on appeal, by the Parties, now joined to th e proceedings. 3.8 In narrating the proceedings in the Court below and moving on to consider the merits of the appeal before us, we shall refer to the principal Parties by their names (albeit abridged), to prevent confusion in the Record, as each J13 ... of the Parties were referred to as "Appellant" and "1st Respondent" as they were in the different courts. The Appellant in casu, (who was the 1 st Respondent in the Court below,) will be referred to as The Foundation and Munalula Linyati, the 1st Respondent in casu, and w.ho was the appellant in the High Court, w ill be referred to as Linyati. 4.0 DECISION OF THE COURT BELOW 4.1 As we start to analyse the Judgment of the Court below, we note that the learned Judge delivered two Rulings; on 19 June 2019 (page 332 Volume 2 of the Record of Appeal) and on 9 September 2019 (page 444 Volume 2 of the Record of Appeal). The 2 Rulings, as noted, were subsequently the subject of Appeal before this Court whose Judgment was delivered on 20 November 20201 . We shall comment on this later. The Trial Judge considered the four grounds of appeal emanating out of the action instituted by the Foundation, in cause No. 2006/SSP/217 as follows: a. That the Originating Notice of Motion was not irregularly issued in respect of the property Stand No. 4607 Rhodes Park, Lusaka b. That the Court did not take into account the doctrine of res judicata when in fact this matter was decided by the Superior Court, namely the High Court. c. Hope Foundation for Women and Children had no locus standi in the matter as it did not have any title or interest in the subject matter of the aforesaid property. d. The Appellant was a wrong party against whom proceedings were instituted. J14 4.2 In determining ground one of the appea l, the Lower Court considered the argument s placed before it. Linyati contended that the property is subject of a certificate of title and argued that by virtue of Section 2 of the Lands and Deeds Registry Act1, which defines the Court as the High Court, the Court below, being a Subordinate Court, had no jurisdiction over it. It was his argument that the Subordinate Court could only have j urisdiction to deal with the matters if the parties had consented t hat it hears them in accordance w ith Section 23 of the Subordinate Court Act • 4.3 The Foundation co untered this argument on the ground that Linyati, as the record wou ld show, did not exhi bit any evidence to show that he made an application to set aside the originating process for irregularity in the Cou rt below, that was either heard or determined. The Foundation further argued that even in the Ruling appealed against, there is nothing t o show that the irregu la rity of the Originating process was deliberated on, in the Court below. They placed reliance on the case of Mususu Kalenga Building Limited and Others v Richman's Money Lenders Enterprises4 to argue that a matter not raised in the Court below, cannot be raised on appeal. Reliance was also placed on Order 2 Rule 1 and 2 of the Rules of the Supreme Court of England3 to argue that th ese provisions empower a pa rty to apply to set aside proceedings for irregul arity, within a reasonable time after becoming aware of the irregularity, and before taking any fresh steps in the proceedings. It was their contention that such irregularity did not nullify proceedings. JlS 4.4 The Foundation further argued that by not applying to set aside the proceedings in the Court below, and Linyati taking fresh steps in the proceedings, on becoming aware of the irregularity, in line with the decision in the case of Oscar Chinyanta and 31 others v Alasia Building Construction Limited and TAP Zambia Limited 5 , Linyati, waived his right to object to the proceedings. 4.5 The Foundation further argued that Section 23 of the Subordinate Court Act2 provides: "If, in any civil cause or matter before a Subordinate Court, the title to any land is disputed, or the question of the ownership thereto arises, the Court may adjudicate thereon, if all parties interested consent; but, if they do not all consent, the presiding magistrate shall apply to the High Court to transfer such cause or matter to itself" 4.6 This provision was relied on by The Foundation in support of the ground that this section deals with the determination of title or ownership to land. It was their argument however, that in this matter, the reliefs sought by them did not include determination of the title to the property in issue or its ownership. What they sought, was vacant possession and leave to issue a wa rrant of distress, with the affidavit in support of the originating process confirming th at no rent was paid by Linyati. They added that the proceedings in the Court below were taken out in pursuance of the Rent Act, and Rule 3 of the Rent Rules4 which stipulates that proceedings should be commenced by Originating Notice of Motion. J16 4.7 The Court below in analysing its decision, referred to the preamble of The Rent Act, 4 which states as follows: "An Act to make provision for restricting the increase of rents, determining the standard rents, prohibiting the payment of premiums and restricting the right to possession of dwelling-houses, and for other purposes incidental to and connected with the relationship of landlord and tenant of a dwelling house." 4.8 In light of the preamble above, and the fact that the Parties had no existing tenancy agreement, the Lower Court reasoned that The Foundation did not have a legal right to commence proceedings under the Rent Act. The Lower Court placed reliance on Section 3 (2) of the Rent Act 4 which states: "This Act shall not apply to- (a) a dwelling-house let to or occupied by an employee by virtue and as an incident of his employment; {b) Premises let by the Government save as to the rent charged in respect of any authorised subletting of the whole or part thereof." 4.9 The Lower Court noted that the Record showed that Linyati was the caretaker of the property, and that the 2nd Respondent, as Administrator, of the estate of the late Simonwa Simonda, sought to buy the property as an incidence of employment, and under the Rent Act, no proceedings could be taken out in such a case. He added that The Foundation was in fact, claiming ownership to the property. Therefore, it could not lawfully have commenced the proceedings before the Court below using the Rent Act, J17 '• and because the property was subject of a certificate of title, and The Foundation claimed ownership of the property. 4.10 As to whether Linyati waived the right to object to the proceedings, as it participated in the application to stay execution _of the Order of eviction in line with Order 2 Rule 2 of the Rules of the Supreme Court, 3 it was noted that the proceedings were commenced in the Court below, being the Subordinate Court. The Lower Court referred to Section 12 of the Subordinate Court Act 2 and referred to the Supreme Court decisions of Oscar Chinyanta and 31 others v Alasia Building Construction Limited and TAP Zambia 5 and the case of Crossland Mutinta and Bashir Seedat v Donovan Chipanta 6 relied on by the 1st Respondents in which it was observed that a matter that has not been raised in the Court below cannot be the subject of appeal. 4.11 In arriving at its conclusion, the Lower Court was of the view that, while as a general rule, a matter not raised in the Court below, may not be raised on appeal, where that issue relates to jurisdiction, even if it was not raised in the Court below, it can be raised on appeal. The Court opined that the cases of Mususu Kalenga 4 and Oscar Chinyanta 5 relied on by the 1st Respondent do not apply in this matter as the issue in contention, relates to the jurisdiction of the Court. 4.12 The Lower Court, having found that The Foundation could not have properly taken out the proceedings before the Court below using an Originating Notice of Motion, allowed ground one of the appeal. J18 4.13 In ground two, the Lower Court considered the arguments of the Parties. This ground alleged failure by the Court below to take into account the doctrine of res judicata, when in fact this matter was decided by the Superior Court being the High Court. Linyati in advancing this ground of appeal alleged that the High Court by Judgment dated 28th November 2003, in the matter between Sepiso Simonda (Suing as Administrator of the estate of the late Simonwa Simonda v Golden Mandandi, The Attorney General and VDF Properties Limited 7 delivered Judgment in favour of the Plaintiff. The Judgment directed the Housing Committee to sell Stand No. 4607 or House No. 7 Andrew Mwenya to the Plaintiff in that cause, who is the 2nd Respondent herein, in accordance with the guidelines set out in Circular No. 12 of 1996 on the sale of houses to civil servants. 4.14 It was The Foundation's counterargument that the doctrine of Res Judicata did not apply, as the requirements for the doctrine to be successfully raised, had not been met. The Foundation argued that they were not a party to the proceedings in the cited case, Sepiso Simonda (Suing as Administrator of the estate of the late Simonwa Simonda v Golden Mandandi and the Attorney General 7 • It was their position that the Judgment of the High Court dated 28th November, 2003, was set aside by the High Court itself in a Ruling dated 14th November, 2006, which was confirmed by the Supreme Court in the case of Sepiso Simonda (Suing as Administrator of the estate of the late Simonwa Simonda v Golden Mandandi, The Attorney General and VDF Properties Limited 8 on appeal, and which Court, in fact held that there was no Judgment at all. J19 4.15 The Supreme Court noted that the trial Judge should have proceeded in line with Order 35 of the High Court Rules 5 , and not enter Judgment in default. The Lower Court referred to the definition of Res Judicata in Black's Law Dictionary1, as; "A thing adjudicated. 1. An issue that has definitely been settled by judicial decision. 2. An affirmative defence barring the same parties from litigating a lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions that could have been, but was not •. raised in the first suit. The three essential elements are (1) an earlier decision on the issue (2) a final judgment on the merits and (3) the involvement of the same parties, or parties in privity with the original parties." 4.16 The Lower Court further cited Black's Law Dictionary1 and defined privity as: "The connection or relationship between two parties, each having a legally recognized interest in the same subject matter (such as a transaction, proceeding or piece of property); mutuality of interest." 4.17 The Lower Court also relied on the cited case of Bank of Zambia v Jonas Tembo and others9 in which it was held: "{1) In order that a defence of res judicata may succeed, it is necessary to show that the cause of action was the same, but also that the Plaintiff had an opportunity of recovering and but for his own fault might have recovered it in the first action that which he seeks to recover in the second. J20 {2) A plea of res judicata must show either an actual merger or that the same point had been actually decided between the same parties." 4.18 The Lower Court noted the definitions of res judicata as seen above, and arrived at the decision that the doctrine of res judicata did not apply in these proceedings. The Court pointed out that it is trite that a judgment made by a Court of competent jurisdiction is binding until set aside. The Court noted that at the time The Foundation commenced proceedings before the Subordinate Court on 28th February 2006, the High Court Judgment dated 28th November 2003, directing the Housing Committee to sell the house to the 2nd Respondent was valid as it had not been set aside. 4.19 The Lower Court added that the Judgment was only set aside on 14th November 2006, and confirmed by the Supreme Court in its' Judgment dated 28 th November 2008. 4.20 The Lower Court referred to the case of Southern Africa Trade Limited v Hawkwood Properties Investment Limited 10 relied on by Linyati, which she distinguished from the one before her court and added that, what the above cited case decided, was that where a matter is not determined on its merits, one cannot plead res judicata. In this matter, there was a Judgment given by the High Court on 28th November 2003, which was set aside by the High Court itself, and which order setting aside, was confirmed by the Supreme Court. However, that Judgment dated 28th November 2003, was in force at the time The Foundation commenced the proceedings in the Court below on 28th February 2006, as it had not been set aside. J21 4.21 The Judge opined that being a Judgment that was valid at the time, the Foundation who was not party to the matter in which the Judgment was delivered, could only have properly applied to join the proceedings, and thereafter apply to set aside the Judgment, so that it could be heard on its interest in the property. 4.22 As it relates to Ground 2, the Lower Court took the considered view that the Foundation having commenced the proceedings in the Court below when there was in force a Judgment in relation to the property, that decision was binding upon it, until it was set aside and allowed Ground two of the appeal. 4.23 The third ground considered by the lower court, centred on the allegation that the Foundation had no locus standi to commence proceedings, as it did not have an interest in the property. The Lower Court acknowledged that the Foundation was offered to buy the property by letter of offer dated 2ih April, 19~8, from the Commissioner of Lands, and as reflected on the Lands Register at pages 14 and 15 of the Record of Appeal before the lower court. She acknowledged the letter of offer also exhibited as 'DFl' in the Record of Appeal to the Appellants affidavit in support of additional facts and evidence. 4.24 The Lower Court considered the argument that the certificate of title for the property was issued in the name of Hope Foundation Limited, which is not the same as the Appellant. The Lower Court noted that the letter of offer is in the name of the Appellant and agreed that the Appellant has attributed the name on the certificate of title as having been put in error. The Lower Court opined that it was clear that the Foundation was offered J22 to buy the property and it paid for the same, with receipts issued in its name, which establishes that it had an interest in the property and dismissed ground 3 as it found that the Foundation had the requisite locus to maintain the action. 4.25 In considering the last ground of appeal before the Lower Court, which was that Linyati was a wrong party to have been sued, as he was merely a caretaker of the property, having been appointed by the 2nd Respondent. Both the Foundation and the 3rd Respondent argued that the Foundation commenced the proceedings in the Court below for possession of the premises and argued that in an action for possession, a Plaintiff is required to join all the Defendants who are in occupation of the premises sought to be possessed, that they know by name. The Lower Court arrived at the conclusion that Linyati having been known, was properly joined in the proceedings before the Court below. 4.26 The Lower Court further reasoned that the fact that Linyati was in occupation of the premises or part of it, did not justify the proceedings against him, as the dispute related to ownership of the property, and the Administrator of the estate of the late Simonwa Simonda, being the 2nd Respondent herein, was properly the correct and primary party against whom proceedings were to be commenced. On this reasoning, the Learned Judge allowed ground 4 of the appeal. 4.27 The Lower Court in its decision, relied on Order 47 Rule 21 of the High Court Rules5 , found that the proceedings in the Court below were not properly commenced and the eviction of Linyati was wrongful. The Court was of the considered view that Linyati was entitled to damages for J23 wrongful eviction against the Foundation, to be assessed by the Registrar. The amount due to carry interest at the average short term deposit rate from the date of issue of the proceedings before the lower court, until the date of Judgment, and thereafter at the Bank of Zambia lending rate until payment. The Lower Court added that Linyati was not entitled to regain possession of the property. 4.28 The Lower Court awarded Linyati costs, after noting that it had succeeded on the first, second and fourth grounds of appeal, which went to the root of the proceedings. Leave to appeal was granted. 5.0 THE APPEAL 5.1 Being dissatisfied with the Judgment of the Lower Court, the Foundation filed a Notice of Appeal and Memorandum of Appeal on 5th August 2021 advancing four (4) grounds of appeal: 1. The Court below erred both in law and fact in departing from the case put forward in the Subordinate Court by the Appellant herein {1 st Respondent in the Court below) in holding that the Appellant claimed ownership of the property, when in fact the action commenced in the Subordinate Court was for possession of the property and for leave to issue warrant of distress. 2. The Court below erred both in law and fact in allowing Ground Four of the Appeal by the 1st Respondent (Appellant in the Court below) and holding that the action was wrongly commenced against the 1st Respondent when in fact it was the 1st Respondent that was in occupation of the property against whom the Appellant sought vacant possession. J24 3. The Court below erred having found that an action could not be maintained against the 1st Respondent (Appellant in the Court below) as he had no interest in the property, was merely a caretaker of the property and that he should not be entitled to regain possession of the property, erred in law and fact in awarding damages to the 1st Respondent as a result of his eviction when he had no interest in the property and when in fact none were pleaded. 4. The Court erred both in law and fact in allowing Ground Two of the Appeal before the Court below, in that:- (1) Despite finding that the doctrine of res judicata did not apply to the proceedings as pleaded in Ground Two of the Appeal, the Court nevertheless allowed this Ground of Appeal; (2) In holding that the High Court Judgment of 28th November 2003 under Cause Number 2000/HP/0263 was in force and binding on the 1st Respondent (now the Appellant before this Court) at the time the action was commenced in the Subordinate Court, despite the Supreme Court Judgment of 1st July 2009 Appeal No. 11/08 holding that there was in fact no Judgment in respect of the aforesaid Judgment of 28th November 2003. 6.0 APPELLANT'S ARGUMENTS IN SUPPORT OF THE APPEAL 6.1 We have duly considered and appreciated the Appellant's Heads of Argument filed on 1st October 2021 and Heads of Argument in reply filed on 28 th September 2023, which wil l not be recast here, save for emphasis as necessary. J25 7.0 THE 15r & 2ND RESPONDENT'S HEADS OF ARGUMENT 7.1 We have equally considered the 1st & 2nd Respondents Heads of Argument filed rather late in the day and on 13 September 2023, almost two years after having been served with the Appellants Arguments. We must frown at this inordinate delay, for reasons that were not entirely satisfactory nor compelling. However, and being mindful of the checkered history of this action, and in the exercise of our discretion, we granted leave for the filing of the Heads of Argument, as an exception, rather than the norm. 8.0 THE 3RD RESPONDENT'S HEADS OF ARGUMENT 8.1 The 3rd Respondent did not file any arguments. 9.0 THE HEARING 9.1 At the hearing, Counsel placed reliance on their respective heads of argument and made oral submissions in support. We have carefully considered the grounds of appeal reproduced in paragraph 5 above, the impugned Judgment and the arguments of the Parties. We will address our minds to the grounds of appeal, while focusing on the direction by the Supreme Court. DECISION OF THIS COURT 10.1 We did state at paragraph 4.1 above that we would offer our comments on the matter as it proceeded before the lower court. We have noted in our Judgment of November 2020,1 that of the two Judgments of the Supreme Court2 & , the former directed that the appeal from the Subordinate Court J26 was to be re-heard, whi le the latter Judgment directed that the 2nd and 3rd Respondents be allowe d to join the proceedings. At page 22 of the Judgment of 21 May 20082, page 125 of the record of Appeal, the Supreme Court had this to say: "However, we are compelled to observe that the proceedings before the trial Magistrate raised more issues than meets the eye and raise a lot of suspicion. Indeed, the proceedings before the trial Magistrate were a comedy of errors. Regrettably, the Appellate High Court Judge never appreciated the issues involved in the matter. The case raised serious issues which neither the Magistrate, if he had jurisdiction, nor the High court Judge pronounced upon". 10.2 It was clear that w hat was to be re-hea rd were issues raised in the appeal to th e High Court, namely; the competence of th e action commenced by the Foundation in the Subordinate Court after the High Court had entered Judgment in favou r of the 1st Respondent. Th e Judgment of the Supreme Court was a directive upon the High Court t o establish the validity of the proceedings before the Subordinate Court and whether or not the Magistrate had jurisdiction at all. The Supreme Court intended the lower Cou rt to deal with the root cause of the dispute surrounding true owne rship of the property, w ho had interest in th e property, the nature of such interest and w ho could maintain an action, as opposed to being bogged down w ith applications centring on procedural irregu larities, mostly advanced by the Foundation. (emphasis is ours). J27 10.3 In addressing our minds to grounds 1 and 3, we note, as did the Foundation, that the same being interrelated will be addressed collectively. Our attention has been drawn to the relevant parts of the Judgment of the Court below, where Counsel for the Foundation argued that the Court recurrently emphasized and erroneously held that the Foundation's action instituted for possession of the property and leave for warrant of distress, was in fact an action claiming ownership to the property. 10.4 Counsel referred us to the extract of the Judgment beginning at line 12 page 60 of the Record of Appeal, where the Court reasoned, that the Foundation, could not have lawfully commenced proceedings, using the Rent Act and because the property was subject to a certificate of title, that the Foundation's action was one in which it was claiming ownership of the property. 10.5 Counsel for the Foundation submitted that while the Court below acknowledged and made reference to the originating process commencing the action in the Subordinate Court and the Foundation's claims as contained in the originating notice of motion, the Court below nevertheless erred in departing from the case put forward by the Foundation by holding that the action commenced was instead for the determination of title; or a claim for ownership of the property Stand No. 4607, Andrew Mwenya Road, Lusaka . 10.6 The Foundation referred to the case of Mazoka and Others v Mwanawasa and Others11 and submitted that, having set out the claims it sought the Court to adjudicate on in its Originating Notice of Motion, the parties and the Court were bound by the issues of law and fact set out to be J28 determined by the Court. The Foundation has argued that it was not open for the Court to depart from the same and spontaneously raise a new issue that had not been tabled for determination, that of the Foundation claiming ownership of the property or as the Court below held that the dispute related to ownership of the property. 10.7 Counsel for the Foundation referred to the case of Byrne v Kanweka 12 in which the Court emphasized that it is for the parties to choose the issues sought for determination and accordingly submitted that it was an error for the Court below to spontaneously raise the issue of ownership of the property. 10.8 It was further argued that it is settled law that where a party comes to Court with pleadings which allege one set of facts and those set of facts are put fo rwa rd but defeated or rejected, the party putting them forward cannot succeed on a different case which he has not raised and which the other side had not come to trial prepared to meet. 10.9 It was their submission that the Court below in making a finding that the Foundation, which was claiming vacant possession of the property, was in fact claiming ownership of the property, did radically departing from the case pleaded in the Subordinate Court for recovery of vacant possession and leave to issue warrant of distress. They argued that the departure from the Foundation's case must be rejected as foisting a new cause of action which is a complete departure from the case put forward as held in Zambia Safaris vs Mbao 13 . J29 10.10 In addressing our minds to the above arguments, we reiterate that we have analysed and studied the volu minous Records of Appeal filed before cou rt. We acknowledge the 3rd Respondents Affidavit, sworn by one Abraham Banda, an Inspector-Housing with the Ministry of Works and Supply whose affidavit was produced and marked as "MML4" at page 650, Volume Ill of the Record of Appeal, being a copy of the Offer to purchase the sa id property addressed to the Foundation herein from the Ministry of Lands and Proof of part payment recei pts from the Appe llant towards the said property at page 652 to 653 of Volume Ill of the Record of Appeal. 10.11 We have also carefu lly considered the evidence produced in Volume II of the Record of Appeal, specifica lly page 272 being a copy of the certificate of title confirming the Foundation's ownership of the said property. The lower Court was equally satisfied as to ownership. In light of the above evidence, we are of the co nsidered view that there was no question of ownership in this matter as the evidence is clear that the Foundation was in fact, the owner of the said property. 10.12 Howeve r, we disagree with the arguments advanced by the Foundation in so far as they relate to the procedu re invoked by the Foundation in its originating process employed in the court below. We have looked at the Notice of Motion and the supporting affidavit filed by one Joseph lngwe. We are of the considered view, that the property, the subject of this raging dispute, is on title. Section 2 of the Lands And Deeds Registry Act1 is instructive and defi nes the Court as the " High Court" . J30 Without further debate, we find that the Subordinate Court had no jurisdiction over it. We have noted the provisions of section 23 of the Subordinate Court Act2 and whilst we agree with the Foundation that there was no record of Linyati having objected or raised any issue as to irregularity of the proceedings, we are of the considered opinion, that this issue rests solely on jurisdiction of the Subordinate Court to proceed in the manner it did. We are equally au faire with the argument that Parties must challenge an irregularity as soon as it becomes aware of it and before taking any fresh steps in the proceedings. However, for a Court to proceed to deal with matters, Jurisdiction is cardinal. 10.13 We have noted the arguments advanced by the Foundation and its reliance on the decision of the Supreme Court in the case of Crossland Mutinta although we are of th e considered opinion that the said case does not aid the Foundation. The Supreme Court, in interpreting section 23 of the Subordinate Court Act2 emphasised the importance of all interested parties to consent to the adjudication by the Subordinate Court. Further and in support of the Foundation's argument, that Linyati did not raise any challenge to the irregularity and that it was precluded from doing so at appeal stage, the Supreme Court in the cited case of Crossland Mutinta6 noted as follows: "We must state from the outset that we agree with the position that a matter that has not been raised in the Court below cannot be the subject of appeal. We note in the present case, however, that the issue that was being raised on appeal in the Court below, relates to the jurisdiction of the Subordinate Court to adjudicate on a land dispute. J31 In the case of Aristogerasimos Vangelatos and Another v Metro Investments Limited and 3 others we held as follows; "with regard to jurisdictional questions being raised on appeal which had not been raised in the lower Court: "However, although it is a general Rule that issues that have not been raised in the Court below cannot be raised on appeal, the question of jurisdiction can be raised on appeal notwithstanding the fact that it was not raised in the Court below". In arriving at this decision, we are guided by the learned authors of Halsbury's Laws of Englancf, at paragraph 717 who state as follows: "It is the duty of an appellate Court to entertain a plea as to jurisdiction at any stage, even if the point was not raised in the Court below". This authority clearly places an obligation upon us to allow a plea of want of jurisdiction to be raised, even where, as in this case, the issue was not raised in the Court below. The rationale for this lies in the consequence of the Court exercising jurisdiction which it does not possess. Halsbury's2 at paragraph 715 states, in this regard, that where a Court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgment is given." The Supreme Court in that matter further stated that; "In the Vangelatos case referred to in paragraph 44, we held that, ...... the absence of jurisdiction nullifies whatever decision follows from such proceedings." J32 • 10.14 We are thus of the settled view that the issue being one of jurisdiction, can be raised on appeal, and the reliance by the Foundation on the decisions in the cases of Mususu Kalenga4 and Oscar Chinyanta5 are misapplied in casu. The effect of the absence of jurisdiction, is that it nullifies whatever decision that follows from such proceedings. We note that in our judgment, of November 20201, we found that the learned Judge dealt with the overarching issues relating to compliance with the procedure in the appeal from the Subordinate Court to the High Court in the two rulings, the subject of the Appeal before this Court. What remained to be determined are the substantive issues, as directed by the Supreme Court, in the appeal to the High Court. 10.15 Having established as we have done, that the Subordinate Court did not have jurisdiction to proceed to hear this matter, we take a very serious approach to deal with the matter holistically, as directed by the Supreme Court and to proceed to determine the remaining substantive issues raised in the Notice of Appeal, such as who had an interest, the nature of the interest and who could maintain an action. 10.16 That being said, we move to consider ground 3, in which the Lower Court found that Linyati does not have interest in the property and that he was merely a caretaker of the said property. This ground challenges the decision of the lower court in awarding damages to Linyati, though recognising that he was not entitled to regain possession of the property. 10.17 We have considered the 1st and 2nd Respondents Heads of Argument in which it was submitted that the 1st Respondent was a wrong party to have J33 • been sued, as he was merely a caretaker of the property having been appointed by the 2nd Respondent. It was submitted that the fact that the 1st Respondent was in occupation did not justify commencing proceedings against him because the dispute related to ownership, therefore, the proper individual to sue was the 2nd Respondent. We have acknowledged the arguments and submissions of the Foundation on this issue. The Foundation referred the Court to page 74 of the Record of Appeal where the Lower Court awarded damages to Linyati for wrongful eviction, despite the Court holding that he had no right to regain possession. The Foundation further submitted that the lower Court acknowledged and made a finding that the Foundation was offered the property and was therefore the owner of the said property, adding that it is unprecedented to award damages to a squatter against the owner, as possession in law remains with the owner. 10.18 We have considered the above arguments and refer to the guidance offered by the case of Anti-Corruption Commission v Barnet Development Corporation Limited 14 where the Supreme Court stated that: "Under section 33 of the Lands and Deeds Registry Act, a certificate of title is conclusive evidence of ownership of land by a holder of a certificate of title. However, under section 34 of the same Act, a certificate of title can be challenged and cancelled for fraud or reasons for impropriety in its acquisition." J34 10.19 We have also noted the Appellants Heads.of Argument in Reply in which it was submitted at paragraph 2.3, that the 1st and 2nd Respondents have not brought to fore legal provisions or court decisions that support the award of damages to third parties that are found to have no legal interest in a property and are occupiers without lawful authority or consent of the legal owner. The Appellants referred to section 9 of the Lands Act,6 which provides as follows: '9 (1) A person shall not without lawful authority occupy or continue to occupy vacant land. (2) Any person who occupies land in contravention of subsection (1) is liable to be evicted.' Having noted the above, we are of the considered view that the legal interest vested with the Foundation, who had an overriding legal interest over the said property. There is no doubt as to the ownership of the property. We are of the view that Linyati had an interest only to the extent of his occupation of the said property, as caretaker. Further as we have noted, the 3rd Respondent clearly disputed any entitlement that the 2nd Respondent may have over the property in dispute. The Foundation further submitted that Linyati did not plead damages and did not lead any evidence in support of the award of damages by the Lower Court. We rely on the decision of the Supreme Court in the case of Prisca Lubungu v Obby Kabango and Others, Ndola City Council 15 cited by the Appellants, in which case the Apex Court held that it is incontrovertible that a certificate of title . J35 is evidence of proprietorship of land of which it relates. It was also the position of the Supreme Court that a person in mere adverse possession, is in a precarious position as far as the law is concerned, as their lack of title, disentitles them to any remedy in a court of law. We are of the considered view there was a misdirection on the part of the lower court only to the extent of its finding that Linyati had an interest, (while acknowledging that the Foundation had good title), that entitled him to damages. Therefore, by awarding Linyati damages, the lower Court clearly made a moral, rather than a legal judgment, despite clear evidence that it noted in Court, to show that the rightful owner was the Foundation. It is settled at law, that an occupier or squatter cannot be compensated in damages against the owner of land. 10.20 We arrive at the conclusion and in the circumstances, are inclined to accept the arguments of the Foundation that the Court below misdirected itself in its finding leading to the wrong conclusion that the occupier (Linyati) was not the correct person to be sued. This finding led to the error of awarding damages to Linyati. We have combed the Record of Appeal and find that the same was not pleaded, nor evidence led. This is a proper case for us to set aside the finding of the Court below. We therefore find that there is merit in the above ground. Ground 3 succeeds. 10.21 In arguing Ground 2 of the appeal, the Foundation submitted that the Lower Court erred in law and fact in holding that the action was wrongly commenced against Linyati when in fact he was in occupation of the said property. The Foundation argued that it is trite, that an action for possession or recovery of land, is against the party in occupation. It was J36 • their argument and that was not in dispute that the 2nd Respondent, the Administrator of the estate of the late Simonwa Simonda, was not in occupation of the property. 10.22 Having carefully perused the Record of Appeal, we note the Foundation's Affidavit evidence filed on 6th April, 2021 and Heads of Argument at page 693, Volume Ill of the Record of Appeal, in which it was argued that it is not in dispute that the 1st Respondent was a caretaker, placed on the property by the family of the 2nd Respondent, a fact which was established by the Supreme Court in the Judgment of 20153 at page 305 line 4, of the Record of Appeal. We are of the considered view that there is no evidence on record which demonstrates to the court that Linyati was entitled to occupy the property. There is equally no evidence on Record which shows that the 2nd Respondent was allocated the property in dispute. We have observed the affidavit evidence of the 3rd Respondent which adduced evidence that shows that the late Simonwa Simonda's application to purchase the property was rejected and that the said Committee on the Sale of Government Pool Houses gave the family of the late Simonwa Simonda notice to vacate the property which was noted and accepted by the family at page 648, Volume Ill of the Record. This being the case, and subject to what we have pronounced above on jurisdiction, Linyati, being in physical occupation of the property, was the correct Party to have been sued. In their Heads of Argument in Reply, Counsel for the Foundation, placed reliance on the case of Moonga & Others v Hamweenda & Others16 where this Court held: J37 .. "In an action for recovery of land strictly speaking all persons who are actually in physical possession of the property should be made defendants or respondents." 10.23 In the Lower Court, it was the Foundation and 3rd Respondent' s argument on this issue that in an action for possession, a Plaintiff is required to join all the Defendants who are in occupation of the premises sought to be possessed, that they know by name. The Foundation cited the case of Rev Wykeham Terrace 17 and argued that the purpose of naming the occupant of the land, is to ensure that the person in occupation is given an opportunity to come to Court and contest the proceedings, anyone else affected still having an opportunity to be heard by joining the action. 10.24 We agree with the reasoning of the Lower Court at page 73 of the Record in which the Court stated that Linyati, having been known, was properly joined in the proceedings before the Court below. We are equally persuaded by the argument that the action commenced in the Subordinate Court, did not seek to establish the Foundation's legal right to possession against any competing complaints, it was purely an action for recovery, rightly against the party in occupation a trespasser or squatter with no right to the property. We are further persuaded by the cited case of Akreil Zulu v Anna Zulu18 in the Appellant's Arguments in Reply and find that it was correctly argued that Linyati, being in unauthorised occupation of the said property, was the correct party against whom the action was commenced, Ground 2, subject to our pronouncement on jurisdiction, therefore succeeds. J38 - 10.25 With respect to ground 4 and issues dealing with res judicata and having acknowledged the submissions of both the 1st & 2nd Respondent, and the Appellant, we are of the considered view that the same is neither here nor there . The substantive issues having been dealt with; we are of the settled position that dealing with any other ground of appeal, will serve no useful purpose. 10.26 We reiterate what we have stated before that this record is unprecedented and bad for efficiency and litigant confidence . It is certainly not a precedent that we encourage litigants to follow . It is trite that a Court is duty bound and empowered pursuant to section 13 of the High Court Act5 , to deal with all issues raised before it in the matter with finality and thereby avoid escalating the multiplicity of action from scattered litigation that has already been deployed piecemea l by Parties against each other. 10.27 It is also trite that a matter determined by the Subordinate Court beyond its jurisdiction is a nullity for want of jurisdiction on the part of the court that rendered it. 10.28 We have gone further and beyond, as directed by the Supreme Court to consider the substantive issues in this matter. This does not mean that procedural errors and defects notwithstanding, Courts will proceed to determine a dispute on its substantive issues. This case must certainly be the exception and not the norm. J39 10.29 It remains a fact that this matter has been in the Courts since the year 2000. It has been handled by two Magistrates, five High Court Judges; it has been to the Supreme Court three times and is now before us for the th ird time . There has to be end to litigation and the unjustified use of jud icial resources by one or two disgruntled litigants, at the expense of other matters. 10.30 It also remains a fact that if Parties and their respective Counsel, had expended half the energy and zeal in properly prosecuting this matter rather than being focused on interlocutory applications, this matter would have seen a logical conclusion several years ago. We must also frown on the practice of Counsel swearing Affidavits on facts which are contentious, a practice condemned by the Supreme Court in the case of Chikuta v Chipata Rural Counci1 19 . 10.31 Havi ng espoused the position above, we make the following orders: a. The matter being wrongly commenced in the Subordinate Court is null and void for want of jurisdiction. b. We set aside the award of damages to the 1st Respondent (Linyati), as the same is untenable at law. c. The Appellant, (the Foundation) is the rightful owner of the property the subject of the dispute. J40 - 10.32 In the circumstances of the record reflecting that both Parties essentially having perpetuated this litigation and both parties having made procedural and fundamental errors, with impunity, costs shall be borne by the Parties respectively, both here and in the cour elow. COURT OF APPEAL JUDGE K. MUZENGA A. N. PATEL, S. C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J41