Joseph Siame v Phiri (Appeal 138 of 2016) [2019] ZMSC 332 (11 June 2019)

J1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO 138/2016 HOLDEN AT NDOLA (CIVIL JURISDICTION) IN THE MATTER OF AND IN THE MATTER OF BETWEEN: JOSEPH SIAME AND Subdivision A5205 of Sub­ division F of Farm 32a Lusaka. Order 113 of the Rules of the Supreme Court, 1999 edition, APPELLANT MARY DOREEN PHIRI RESPONDENT CORAM: Hamaundu, Malila and Kabuka JJS On 4th June, 2018 and 11th June, 2019 For the Appellant : Messrs Makebi Zulu Advocates For the Respondent : Messrs Ventus Legal Practitioners ------- 9------- .---------------- —— ---- ---- JUDGMENT Hamaundu, JS delivered the Judgment of the court. Cases referred to: 1. Lianrond Choka v Ivor Chilufya (2002) ZR 33 2. Filemart Ltd v Avery (1989) C. G.92 Legislation referred to: The Rules of the Supreme Court (White Book), Order 113 J 2 The, appellant appeals against the High Court’s decision to declare him a squatter on the respondent’s land, and grant the latter an order of possession to enable her evict him. The facts of this matte are these: The respondent was offered a plot by Galaunia Farms Limited through their property agents known as Meanwood Property Development Corporation Limited in 2010. She paid for it. The appellant also bought the same piece of land from one Debra Kasumpa Chifuka who had earlier, in 2008, been offered the said plot by Meanwood Property Development Corporation. She was supposed to have paid for it in instalments. In 2012, the appellant submitted his construction plans to Meanwood Property Development Corporation for approval. The same were presented under the name of Debra Kasumpa Chifuka. They were approved, whereupon the appellant started putting up a structure on the plot. The development was discovered by the respondent in 2014. Efforts by the parties to resolve their dispute failed. The respondent brought this matter to court under Order 113 of the Rules of the Supreme Court (White Book) to eject the appellant from the plot on J 3 the ground that he was a squatter. The appellant resisted the respondent’s action; contending that he was a legal owner of the plot, and not a squatter. r At the hearing, however, the appellant argued the matter on a procedural issue, namely whether or not the dispute was a proper one to be determined by summary procedure under Order 113 of the White Book. The appellant contended that, since he had a claim of right over the plot, arising from his predecessor in title, Debra Kasumpa Chifuka, he, therefore, had an arguable case which could not be disposed of in summary fashion. For that argument, the appellant relied on the provision in Order 113/8/3 wherein it is stated that a plaintiff should not use the procedure under Order 113 where the existence of a serious dispute is apparent to him. The ^earned judge looked at the documents that the parties had submitted to support their respective contentions, and found that Debra Kasumpa Chifuka had failed to pay the purchase price for the 'plot, whereupon Meanwood Property Development Corporation withdrew the offer from her; and that Meanwood did not recognize the sale transaction between Debra Kasumpa Chifuka * and the appellant. The court held that Debra Kasumpa Chifuka’s J 4 letter of change of ownership was of no effect as she had never acquired ownership of the plot, which had remainded the property of Galaunia Farms Limited. The court also found that Mean wood Property Development Corporation had approved the appellant’s building plans by error on account of Debra Kasumpa Chifuka’s misrepresentation that she had completed the sale. In the court’s view, her conduct amounted to fraudulent misreprentation. Onfthose findings, the court held that there were no arguable issues requiring full inquiry; and, as such, this was a proper matter to be determined under Order 113 of the White Book. The court proceeded! to find that the appellant was a squatter, and granted the respondent immediate possession of the plot. The appellant has put forward two grounds of appeal as r follows: 1. That the learned judge erred in law and in fact when he held that there were no arguable issues in the matter which required a full inquiry. 2. That the learned judge erred in law and in fact when he held that the appellant was a squatter within the provisions of Order 113 of the Rules of the Supreme Court (White Book) by failing to appreciate that the appellant has an interest in the property in dispute, J5 Now, these grounds of appeal, and the appellant’s submissiohs on them, raise only one argument; this is presented in two limbs. One limb of the argument is that the learned judge should not have entertained this matter at all. This comes out in the second ground of appeal. The second limb of the argument is in the alternative, and is that if the learned judged was inclined to entertain ,the matter he should then have proceeded under Order 28, Rule 8 of the White Book by including other parties who also needed to be heard in the action. This limb comes out in the first ground of appeal. The appellant submits that he had demonstrated to the court below that he had a claim to the plot; so that there existed issues that needed to be tried. For these submissions, the appellant relies on the case of Liamond Choka v Ivor Chilufya(1) where we held that the summary procedure under Order 113 is not suitable for persons who have a genuine claim of right. The appellant also continues to rely on Order 113/8/3, together with the case of Filemart Ltd v Avery(2> which is cited in that provision, for the proposition that where the existence of a serious dispute is apparent,to a plaintiff, he should not use the procedure. J 6 Relying on the same authorities, the respondent argues that the documents that the appellant exhibited in the court below to demonstrate his claim of right, namely, the letter of offer to Deborah Kasumpa * Chifuka and the latter’s letter purporting to change ownership, did not demonstrate that the appellant had a genuine claim of right. Our view is as follows: Indeed, the authority relied on by the appellant, which is cited in Order 113/8/3 discourages a plaintiff from adopting the procedure under the Order where it is apparent to him that there is a serious dispute. However, the court should not deny a plaintiff the use of this procedure on the strength of a bare statement by a defendant that he has a dispute with the plaintiff. The dispute should be real, or serious. Therefore, the court is entitled to examine the facts and documents on which a defendant bases his claim that he has a dispute with the plaintiff in order to determine whether or not there is a real or serious dispute. In this case, the learned judge examined the documents that the parties had exhibited in court to support their respective claims, and found that the appellant’s documents were of such little weight J 7 as to be incapable of entitling him to mount any genuine claim to the plot. Hence it allowed the respondent the use of the procedure. Further, the editorial introduction to Order 113, in notes r 113/0/2 states: r “It provides for proceedings to be by a new originating summons procedure in which it is no longer necessary to name the defendant. It dispenses with the need for acknowledging service and forces the attendance of the occupier before the court on the return day if he so wishes to contest the proceedings. If he attends and 'wishes to contest then he may apply to be joined as a defendant. If it appears that there are issues to be tried the court can make appropriate orders under 0.28, r.4 and r.8 for the continuation of the proceedings or deal f with them summarily on the affidavit evidence”. So, even as regards the alternative argument that the learned judge shquld have applied Order 28 and continued the proceedings as if they had been begun by writ, the court was still on firm ground in not doing so because it had the discretion to deal with the issues summarily on affidavit evidence. This is what the learned judge did and, on the facts and documents before him, found the issue raised by the appellant to be of no substance. We are mindful here that the appellant’s appeal is with regard to the procedure adopted by J 8 the court below and not with the merits of the findings. We hasten, however, to say that, on the documents and facts on record, the learned judge’s findings were on firm ground. All in all, we find no merit in this appeal. We dismiss it, with costs to the respondents. SUPREME COURT JUDGE SUPREME COURT JUDGE J. K. Kabuka SUPREME COURT JUDGE