Mutale v Mutale (Appeal 141 of 2008) [2012] ZMSC 45 (28 May 2012)

J1 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA (CIVIL JURISDICTION) B E T W E E N: JUSTIN MUTALE AND WILLIAM MUTALE Appeal No. 141 of APPELLANT RESPONDENT Coram: Mambilima, DCJ, Chirwa and Chibomba, JJS On 7th September, 2010 and on 29th May, 2012. For the Appellant: Mr. D. E. Ndhlovu of Luso Chambers. For the Respondent: Present in person. J UD G M E N T Chibomba, JS, delivered the Judgment of the Court. Case referred to:- 1. Charity Oparaocha vs. Winfridah Murumbiwa (2004) Z. R. 141 Statutes referred to:- 1. Housing (Statutory and Improvement) Areas, Chapter 194 of the Laws of Zambia. The Local Court Act, Chapter 29 of the Laws of Zambia. 2. This is an appeal against the Ruling of the High Court at Kitwe, in which the learned Judge, sitting as an appellate Court, dismissed the appellant’s appeal for want of prosecution. The history of this matter is that the appellant and the respondent are uncle and nephew respectively. The dispute is over ownership of house No. 104, Lufwanyama Road, Chingola. J2 The respondent’s mother who was also sister to the appellant was a tenant in that house which was a property of Chingola Municipal Council. The respondent’s mother died intestate on 8th August, 1995. The appellant was appointed as administrator of her estate. The appellant then moved into the house. The appellant then applied and bought the house from the Council after paying the purchase price. At the time, the respondent was in prison. Following his release from prison, the respondent claimed ownership of the house and a dispute arose with the appellant. The respondent then commenced an action in the Local Court in Chingola claiming that he was entitled to ownership of the house together with his siblings. The Local Court ruled in his favour and ordered the appellant to handover the house to him. The appellant then appealed to the Subordinate Court which upheld the respondent’s claim on ground that the respondent, as a son to the deceased, had a better right to the house. This prompted the appellant to appeal to the High Court. The Notice to Appeal was filed on 30th December, 1998. The appellant applied for a stay which the learned High Court Judge granted ex-parte and gave a return J3 dare for inter-partes hearing. Between 8th January and 13th April, 1999, the application for a stay was adjourned several times before it was confirmed. The High Court then set 11th May, 1999 as hearing date of the appeal. The Court adjourned the hearing of the appeal several times until on 19th August, 1999 when the learned Judge struck the appeal off the cause list due to non- attendance of the parties. The appellant applied to restore the application but on the scheduled dates, the application to restore was not heard until it was struck off the cause list due to the absence of the appellant from Court. The respondent then applied to dismiss the appeal for want of prosecution. The application came up on 22nd June, 2009 but it was adjourned to 30th June, 2009 when it was heard and the trial Judge reserved it for Ruling. In her Ruling delivered on 14 th July, 2009 the learned Judge dismissed the appeal for want of prosecution. Dissatisfied with this order, the appellant appealed to this Court advancing six (6) grounds of appeal as follows: “1. The learned trial Judge erred in law when she ignored the merits of the appeal when dismissing it for want of prosecution. J4 2. 3. 4. 5. 6. The learned trial Judge erred in law when she ordered the immediate execution of the Judgment appealed against when by law there is a statutory three day grace period from the date of Judgment up to the date of execution and since the said Judgment concerned possession of a House the learned trial Judge fell in error when she ordered the immediate issue of writ of possession when there is a separate procedure in such cases after Judgment. The learned trial Judge erred in fact and in law when she allowed a Local Court Judgment which is null and void ab initio to be enforced instead of being tested at the hearing of the appeal. The learned trial Judge erred in law when she ignored the appellant’s title deed to the House in dispute. The learned trial Judge erred in fact and in law when she gave the house in question to the respondent when the said respondent did not pay anything for the house and had no document of title to it. Any other ground which may become apparent upon perusal of the Judge’s notes and record.” Both parties filed Heads of Arguments. However, the view that we take is that it is not necessary for us to summarize the Heads of Arguments, suffice to say that we have perused them. Perusal of the record has revealed two major issues which once determined, will settle this appeal. These are: 1. Whether this appeal was ever restored after it was struck off the active cause list before it was dismissed by the High Court; and 2. Whether the court of first instance had jurisdiction to determine this dispute which involved a Council house in a Statutory housing area. J5 With respect to the first issue raised above, it is clear from the record that although the appeal was struck off on 19 th August, 1999 the same was never restored on the active cause list. The application to restore was not heard as it was also struck out due to non-attendance of the appellant to prosecute his application. The respondent, thereafter, applied to dismiss the appeal for want of prosecution. The learned appellate Judge, as afore-stated, dismissed the appeal for want of prosecution without first restoring the matter to the active cause list. This was a misdirection in that in order for the court to be seized with jurisdiction, the appeal must have first been restored. As it is, the court below had no jurisdiction to entertain the application to dismiss the appeal which had been struck off without first restoring it. Coming to the second issue, which raises the issue of jurisdiction of the court of first instance, it can be seen from the proceedings in the Local Court, that the respondent’s claim is over a house which was a Council house. The claim is that the appellant who was the administrator of his sister’s estate bought the house without the respondent’s and his siblings’ knowledge or J6 consent as children and beneficiaries of their mother’s estate of which the appellant was administrator. The circumstances under which the appellant bought the house in his personal capacity and not for the beneficiaries of his late sister’s estate is what was in question. Further, and more importantly, is the fact that the dispute involves a former Council house situated in a Housing (Statutory and Improvement) Area. Section 3 of the Housing (Statutory and Improvement) Areas, Chapter 194 of the Laws of Zambia which is the definitions Section, defines “Court” to mean: “any Subordinate Court.” Therefore, this dispute was wrongly commenced in the Local Court as the proper Court which is empowered to hear and determine disputes concerning the sale of a former Council house situated in a Housing (Statutory and Improvement) Area is the Subordinate Court. Therefore, since the Court of first instance did not have jurisdiction to hear and determine this dispute, the entire proceedings and the appeals emanating therefrom were all a J7 nullity. We, accordingly, quash those proceedings for want of jurisdiction. Apart from this, the record shows that this matter was commenced on 10th June 1998 and involved administration/inheritance of the deceased’s estate. The Local Courts Act of 1994 was in place and it provided limitation of jurisdiction of the Local Court. Therefore, the Local Court A Grade which heard this case did not have jurisdiction to hear and determine this dispute over a house valued at K900,000. This case, is therefore, caught up by what we ruled in the case of Charity Oparaocha vs. Winfridah Murumbiwa1 where we held that:- “1 Section 43(2) of the Local Court Act, limits the jurisdiction of the Local Court in matters of succession to estates whose value do not exceed fifty thousand Kwacha.” For the reasons given above, the appeal is allowed. This does, not however, end this appeal as we would be failing in our duty if we did not comment on the delay in disposal of this appeal in the Court below. Perusal of the record will show that there was utter disregard of hearing dates given by the Court by the appellant who exhibited time and again, uncalled for J8 conduct of not turning up for hearing on the appointed date. It is in view of this that we order and direct that the aggrieved party, who in this case is the respondent, may commence a fresh action in the Subordinate Courts. We also order that the Statutory Limitation shall begin to run from the date of delivery of this Judgment. In the circumstance of this appeal, it is only fair that each party bears own costs in this Court and in the Courts below. ……………………………….. I. C. MAMBILIMA DEPUTY CHIEF JUSTICE ………………………………….. D. K. CHIRWA SUPREME COURT JUDGE .......................................... H. CHIBOMBA SUPREME COURT JUDGE J9