Josam Kadingi and Anor v Julia Chimbali (Appeal No. 14/2023) [2024] ZMCA 280 (9 October 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 14/ 2023 BETWEEN JOSAM KADING! JOBO CHOONGO AND 1 ST APPELLANT 2ND APPELLANT 0 9 oc- ,-,~~, I L.vt.. I JULIA CHIMBALI RESPONDENT CORAM: Mchenga, DJP, Ngulube and Muzenga, JJA on 17th September 2024 and 9th October 2024 For the Appellants: Mr. Newton Tembo, Legal Aid Counsel, Legal Aid Board For the Respondent: No appearance JUDGMENT Muzenga, JA, delivered the Judgment of the Court. Cases referred to: 1. 21 Nautica Zambia Limited v. Longwalk Zambia Limited 2018/HPC/0243. Legislation referred to: 1. The High Court Act, Chapter 27 of the Laws of Zambia. J2 Other Works referred to: 1. Halsbury's Laws of England 4th Edition volume 1 (1) Reissue. 1.0 INTRODUCTION 1.1 This is an appeal against the decision of the learned Honourable Justice C. B. Maka delivered on 9th November, 2021. 1.2 In the said judgment, the learned High Court judge found in favour of the appellant and ordered that the respondent vacate the land, failing which the appellant should be at liberty to apply for a writ of possession. 2.0 BACKGROUND 2.1 In the introductory part of this judgment, we shall refer to the parties by their respective designations in the Subordinate Court. 2.2 The background to this matter is that the p t plaintiff (now p t appellant) commenced this matter against the defendant (now respondent) in the Subordinate Court seeking the following relief: i) Possession of farmland situate in Munyumbwe in Chilinga village of Chief Munyumbwe of Gwembe District that was allocated to him by his late father Mr. Francis Choongo who died in 2015;and ii) Costs of the suit. J3 2.3 The 2nd plaintiff (now 2nd appellant) was later joined to the proceedings as an interested party. 2.4 The p t plaintiff's testimony was that in 1941, when his grandfather, Mr. James Choongo and his father, Francis Choongo moved to Chikuwe area, Chief Munymubwe instructed Peter Halwele to apportion some of his land to James Choongo. That it was part of the same land that was later given to Francis Choongo, the plaintiffs' father. 2.5 Francis Choongo died in 2015 and the p t plaintiff was appointed Administrator of his father's estate. The defendant who was neither related to Peter Halwele nor Francis Choongo grabbed their land using the chief's court. The lower court was moved to view the land and observed that the first part was used by Francis Choongo's widow before her death in 1992. The court found that the defendant only came into possession of the land in 2017. 2.6 The 2nd plaintiff's evidence was similar to that of the 1st plaintiff. 2. 7 The defendant's evidence on the other hand was that the land in dispute belonged to her father who settled in the area before Peter Halwele. 2.8 The defendant recounted that James Choongo, found her already settled on the land and that it was the same James Choongo and J4 Peter Halwele who asked for a field from her father. That after the death of James Choongo, attempts to get back the land from the appellants proved futile. The defendant's contention was that the land was hers. 3.0 DECISION OF THE SUBRODINATE COURT 3.1 After considering the evidence and submissions by the parties, the Honourable Magistrate Chimuka Mutafela found that the respondent (the defendant in the Subordinate Court) had proved on a balance of probabilities that the first field was hers but had failed to prove by the same standard that the rest of the land was hers. The trial court concluded that the rest of the land was what was shared to James Choongo by Halwele and therefore belonged to the 2nd appellant (who was the 2nd plaintiff in the court below. 3.2 He thus ordered that the respondent (the defendant in the Subordinate Court) continues using the first portion of the land where they found her maize crop when the court went to view the land. 4.0 MATTER BEFORE THE HIGH COURT 4.1 Dissatisfied with the decision of the learned trial magistrate, the defendant (the respondent in this Court) appealed to the High JS Court on 13th January, 2020, advancing the following grounds of appeal: i) That the learned trial magistrate misdirected himself in law when he held that the appellant should share the land with the respondents who are not related to the appellant and therefore share no interest in the land when there was sufficient evidence before the Honourable Court that the land in question belonged to the appellant. ii) That the learned trial magistrate misdirected himself in both law and fact when he held that the appellant had not told the court the extent for her land when upon visitation of the said land by the Honourable court it was sufficiently evident satisfactory boundaries separating and clearly outlining the appellant's extent of land. there were that 4.2 At the hearing of the appeal, the plaintiffs (appellants in this Court) were not before court, and there being no explanation for their absence, the court proceeded to hear the appeal. 4.3 The gist of the defendant's (respondent in this Court) argument was that she was dissatisfied with the magistrate's order that the field should be shared with the plaintiffs (appellants in this Court) when it belonged to her. She argued that there was no demarcation or boundary on the field which in fact belonged to her father. That the p t plaintiff (l5t appellant in this Court) J6 insisted on cultivating the field when the grandfather was just given the field. 4.4 The High Court found that the plaintiffs (appellants in this Court) as claimants failed to prove that the farmland in issue belonged to their ancestor James Choongo and that the whole farmland belonged to the defendant. 4.5 The High Court further ordered that the plaintiffs (appellants in this Court) should vacate the land in issue forthwith failing which the defendant was at liberty to apply for a writ of possession. 5.0 THE APPEAL 5.1 Dissatisfied with the decision of the court below, the appellants filed a Notice and Memorandum of Appeal fronting two grounds of appeal as follows: i) The High Court erred both in law and in fact when it held in favour of the respondent without hearing the 1st and 2nd appellants when they were clearly not served with the notices of hearing. ii) The High Court erred both in law and in fact when it proceeded to hear the appeal in the absence of the 1st and 2nd appellant without satisfying itself that the appellant had filed an affidavit of service. J7 6.0 APPELLANT'S HEADS OF ARGUMENTS IN SUPPORT OF THE APPEAL 6.1 The appellants proposed to argue the grounds of appeal together. 6.2 Reliance was placed on Order 10 of the High Court Rules, Chapter 27 of the Laws of Zambia on service of documents. It was contended in this regard that the date of hearing of the appeal in the High Court was of great importance and needed to be communicated to the appellants. 6.3 The appellants argued that a search through the record revealed that the respondent never filed any affidavit of service to show that the appellants were served with the record of appeal or notice of hearing of the appeal especially that they resided in the same area. 6.4 It was the appellants' contention that the High Court Judge erred when she proceeded to hear the appeal without first finding out if the appellants were aware of the hearing date. 6.5 Reliance was placed on the High Court decision in 21 Nautica Zambia Limited v. Longwalk Zambia Limited1 where the plaintiff was only granted a judgment in default of appearance upon the satisfaction of service of process. J8 6.6 The appellants argued that the High Court's decision to proceed to hear the respondent in their absence was an affront to the rules of natural justice which demand that parties must be heard. 7.0 THE HEARING 7.1 At the hearing of the appeal, learned counsel for the appellant placed reliance on their filed arguments. The respondent was not before court and did not file any arguments. 8.0 DECISION OF THE COURT 8.1 We have carefully considered the grounds of appeal and the arguments advanced in support of the appeal. 8.2 As we see it, the issue for determination is whether the High Court should have heard the appeal in the absence of the appellants without satisfying itself that the respondent had served the appellants and an affidavit of service filed into court to that effect. 8.3 Order 10 rule 3 of the High Court Rules Chapter 27 of the Laws of Zambia provides that: "Any person serving a writ of summons or other originating process, default of appearance to which would, under Order XII, entitle the plaintiff to enter final judgment, shall request the party served to acknowledge receipt by signing on the original or other copy of the process or on some other document tendered for the purpose, and the fact of any refusal to sign shall be so endorsed by the person serving." J9 8.4 The rules of the High Court require any person serving court process, to which default of appearance would entitle that party to enter final judgment, request the party served to acknowledge receipt by signing the court process or other document tendered for that purpose. 8.5 We have carefully perused the record of proceedings before the High Court and have not had sight of any proof of service of the record of appeal, the notice of hearing of the appeal, or better yet, any acknowledgment of service by the appellants. 8.6 It is therefore clear that there was non-compliance with rules of procedure on service of court process. The learned authors of Halsbury's Laws of England 4th Edition volume 1 paragraph 105 and 107 state as follows: "The Rule that no man is to be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard is a fundamental principle of justice ... the rule generally applies at least with full force only to conduct leading to a final act or decision." 8.7 The learned authors further state that: "A person or a body determining a dispute between parties must give each party a fair opportunity to put his own case and to correct or contract any irrelevant statement to the contrary." JlO 8.8 It is therefore incumbent upon the court in determining a dispute between parties to ensure that a fair opportunity is given to each party to defend his or her case. The court below noted in its judgment at page 5 that: "When the appeal came up for hearing, only the appellant was before court and there being no explanation I for proceeded to hear the appeal." respondent's absence, the 8. 9 The learned court below should have satisfied itself that service was effected on the appellants before proceeding to hear the appeal. We therefore find that the trial court fell into error in this regard. 8.10 Consequently we find merit in the appeal and we allow it. 9.0 CONCLUSION 9.1 Having allowed the appeal, we refer the matter back to the High Court for the hearing of the appeal. 9.2 We make no orders as to costs. .......... 0\l4 .............. . P. C. M. NGULUBE COURT OF APPEAL JUDGE ············~ ········· K. MUZENGA COURT OF APPEAL JUDGE