Nelly Mulenga and Anor v Bonface Chilambwe Fundafunda (APPEAL NO. 15/2021) [2022] ZMSC 59 (22 June 2022)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 15/2021 HOLDEN AT LUSAKA (CNIL JURIDICTION) BETWEEN: NELLY MULENGA p\l8LIC O c·z REM\:. CO!JRT n WDiC1ARY WELLINGTON MUSUPILA 0067 LUS AND 1 ST APPELLANT 2ND APPELLANT BONFACE CHILAMBWE FUNDAFUNDA 1 ST RESPONDENT EVA KABWE FUNDAFUNDA IRENE FUNDAFUNDA GEORGE CHISHA FUNDAFUNDA KENNETH KAPIYA FUNDAFUNDA 2ND RESPONDENT 3RD RESPONDENT . 4TH RESPONDENT 5™ RESPONDENT CORAM: Malila CJ, Wood and Kajimanga "JJS On 18th January, 2022 and 22nd June, 2022 For the Appellant: Mrs K. Kabalata and Ms. M Seketi - MESDAMES. CHALWE AND KABALATA LEGAL PRACTITIONERS For the Respondent: Mr L. Mwamba and Mr. J. Chimakata - MESSRS. SIMEZA SANGWA AND ASSOCIATES JUDGMENT Wood, JS, delivered the Judgment of the Court. CASES REFERRED TO: J2 1. Atlantis Bakery Ltd v Zambia Electricity Supply Corporation Ltd (Selected Judgment No. 61 of 2018.) 2. Savenda Management Services v Stanbic Zambia Limited (Selected Judgment No. 10 of2018) 3. Errington v Errington [1952] 1 All ER 149 4. Pearce v Morris [1869} 5 Ch App 227 5. Banque Financiere de la Cite v Pare (Battese) Ltd and Others [1998]1 6. Lipkin German (a.firm) vKarmale Ltd{l992] 4All E. R. 512 at 527 7. Burton Finance Ltd v Speinuay Ltd [1974] 3 All E. R. 735 at 738 8. Shoprite Holdings Limited and Another v Lewis Chisanga Mosho and Another (SCZ Judgment No.40/2014) 9. Admark Limited v Zambia Revenue Authority [2006] Z. R. 43 10. Road Transport and Safety Agency v First National Bank Zambia Limited and Josephine Milambo, Appeal No. 127/2016 11. Nevers Sekwila Mumba v Muhabi Lungu [2014} Z. R. 5 12. Marcus Achiume v The Attorney General {1983] Z. R.1 13. Butler v Rice [1910] 2 Ch277 at 282-283 14. Kajimanga v Chilemya (Appeal No. 50 of 2014) LEGISLATION REFERRED TO: 1. Sections 4,5,6,33,34,61, and 62 of the Lands and Deeds Registry Act Cap 185. 2. Order X Rule 9 (16) of the Court of Appeals Rules, 2016, SI No. 65 of 2016 3. Section 2(7) of the Limitation Act, 1939 Introduction 1. The late Mr. Elijah Kapiya Fundafunda was an enigmatic man. His true intentions may never be known, but he left a family dispute of epic proportions. The facts leading to this appeal have their humble beginnings 1n 1965 shortly after independence. During that year, he obtained a loan for the J3 princely sum of five thousand Pounds from the First Permanent (1962) Building Society to purchase S/D No. 85 of Farm No. 1751, Buckley, Lusaka (the property) from Ms. Marjorie Kathleen Donnally. He serviced the mortgage without incident for many years. 2. In 1987, he felt that he was advancing in age and so he decided to transfer the property to his son Boniface Chilambwe Fundafunda. By letter dated 2nd July, 1987, addressed to Zambia National Building Society (the successor in title to the First Permanent ( 1962) Building Society), the late Elijah Kapiya Fundafunda purported to transfer the property to his son, Boniface Chilambwe Fundafunda together with what he called "all financial matters regarding the same plot." · His son accepted the purported transfer on the same day with the intention of redeveloping the plot so as to allow it to finance itself. We shall return to these letters in a little more detail later. 3. On 11 th October, 1992, the late Elijah Kapiya Fundafunda executed a will in which he bequeathed S/D No. 85 of Farm No. 1751 Lusaka, to his second wife, Nelly Mulenga J4 Fundafunda and the five children he had with her to the exclusion of the five respondents born from the earlier union with his first wife. The marriage certificate issued by the Local Court in respect of the second marriage is dated 6 th December, 1982, although dowry was paid sometime in 1969. 4. The late Elijah Kapiya Fundafunda died on 21 st August, 2005, having left a will. Grant of probate was made to Wellington Chomba Musupila on 23rd March, 2006. 5. Prior to his death, the late Elijah Kapiya Fundafunda made a payment of K5,000.00 to the Zambia National Building Society while other payments amounting to Kl3,817. l l were made by his son. 6. Apart from the letters from the late Fundafunda and his son both dated 2 nd July, 1987, no formal transfer of title was done even though the Zambia National Building Society indicated that the mortgagor had paid the mortgage in full. The mortgage was discharged on 27th March 1990 after a few threats and warnings from the Zambia National Building Society to the mortgagor and his son to liquidate the outstanding balance. JS 7. Three actions 1n connection with the property were commenced by the parties namely, 2007 /HP/895, 2007 /HP /911 and 2007 /HP/ 1095. These actions were later consolidated into one action, tried in the High Court which found in favour of the 1st respondent and confirmed on appeal to the Court of Appeal. Leave to appeal was refused by the Court of Appeal but was later granted by a single judge of this Court. These are the undisputed facts leading to this appeal. The matter in the High Court 8. The consolidated matter in the High Court dealt with the validity of the Will; whether or not the 1st respondent redeemed the mortgage and who was entitled to legal ownership of the property in question. 9. We will not deal with the validity of the Will as the respondent has not challenged the High Court's decision that it was valid. 10. With regard to the redemption of the mortgage, the High Court found that the 1st respondent had in fact helped redeem the mortgage. It also found that the father had contributed the sum of KS,000.00 after writing the letter of 2 nd July, 1987. J6 Based on this, and in an attempt to answer the question of who was entitled to legal ownership of the property, the High Court applied equitable principles, and held that the property did not form part of the estate and should be divided. 11. The son, Bonface Chilambwe Fundafunda was apportioned 73% and the late father 27%. The High Court further ordered that the property be sold to realize what was due to the two parties. 12. The 1st appellant, who is a beneficiary under the Will, and the 2 nd appellant, who is the executor of the Estate, were unhappy with this decision and so decided to appeal to the Court of Appeal. The appeal in the Court of Appeal 13. The appellants, filed 11 grounds of appeal in the Court of Appeal on 26th December, -2018 which were refiled on 3rct April, 2019, following an amendment. The grounds of appeal were in relation to the effect of sections 4, 5, and 6 of the Lands and Deeds Registry Act to the facts; whether or not the 1st respondent's equitable rights were statute barred; whether the Jl apportionment and sale were correct; whether the trial court should have relied on contradictory correspondence; the effect of not taking into account the appellants' submissions; the amount paid by the 1st respondent to redeem the mortgage and whether the 1st respondent's equitable rights were superior to the rights in the Will. 14. In dismissing all the grounds of appeal, the Court of Appeal· took the general view that the grounds of appeal as presented lacked merit. The Court held that section 61 (1) of the Lands and Deeds Registry Act provides for a deed of assent between a transferor and a transferee with the payment of consideration as a condition precedent to the execution of a deed of assent. 15. The Court held that section 61 (1) of the Act does not apply to a transfer under an equity of redemption which is provided for under section 62 of the Act. The Court of Appeal also came to the conclusion that there was no requirement for the execution of a registrable document for purposes of sections 4, 5 and 6 of the Act and agreed with the High Court that the letter of transfer by the father was not a registrable document JS because it was neither a deed of transfer under section 61 ( 1) nor an assignment of equity of redemption. 16. With regard to sections 33 and 34 of the Act, the Court of Appeal held that claims to land are not defeated by the mere fact that a defendant has title to it. The Court of Appeal was of the view that the doctrine of laches, acquiescence and delay was not applicable as the delay was not inordinate and, in any event, the cause of action only arose when the 1st respondent discovered that the property had been bequeathed to the 1st appellant. The Court of Appeal agreed with the High Court that section 2(7) of the Limitation Act, 1939 applied as the claim was rooted in equity and the appellants could not therefore claim that it was statute barred. 17. When dealing with the cross appeal, the Court of Appeal set aside the 73%/27% apportionment as the father had agreed to transfer the whole property and there was no agreement for a conditional transfer. Furthermore, the father had no right to include the property in his Will as he had earlier agreed to transfer it to his son. J9 The appellants' grounds of appeal, the respondents' response and our decision on each ground 18. On appeal to this Court, the appellants have reduced their grounds of appeal to ten grounds. Such lengthy grounds of appeal cannot pass without comment. While we accept that there is no limit to the number of grounds of appeal one can raise on appeal, litigants are cautioned against unnecessary prolixity and repetitiveness in their memoranda of appeal and heads of argument. More attention in future should be paid to what our rules say about what should be contained in, for instance, a memorandum of appeal as outlined in rule 58 (2) of the Supreme Court Rules Cap 25 of the Laws of Zambia. This rule requires parties among other things to be concise, distinct and specific when drafting a memorandum of appeal. 19. With the foregoing in mind, we shall now address the grounds of appeal as presented by the appellant. In addressing the grounds of appeal, we shall also address the respondents' heads under each ground, followed by our decision in relation to that particular ground. J10 20. The first ground of appeal is that the Court of Appeal erred in law and in fact when it held that sections 6, 33, 34 and 61 of the Lands and Deeds Registry Act were not applicable in determining the matter. 21. The appellant has under this ground argued that sections 6, 33, 34 and 61 of the Lands and Deeds Registry Act are relevant and applicable to the case at hand because the justification provided by the Court of Appeal is not sustainable at law and in the face of existing precedent. 22. In dismissing the appellants' first ground of appeal, the Court of Appeal agreed with the High Court that the letters by the deceased and the 1st respondent dated 2 nd July, 1987 were not registrable. This argument, according to the appellants, was introduced by the Court. The 1st respondent did not at any point dispute that registration was a requirement but that equity could come in and see as done that which ought to have been done. The Court of Appeal substituted the 1st respondent's argument and indicated that the interest was not registrable. Substituting submissions in itself was erroneous as the Court should have confined itself to the questions Jll raised in the pleadings as the court had no jurisdiction to set up a different or new cases for the parties. That was the decision of this Court in Atlantic Bakery Ltd v Zambia Electricity Supply Corporation Ltd 1 . 23. The appellants argued that equity follows the law. That this brings the parties to section 4 of the Lands and Deeds Registry Act which requires every document purporting to grant, convey or transfer land or any interest in land for a longer term than one year to be registered, failing which it shall be null and void under section 6. The appellants have argued that there was need for this Court to pronounce itself on whether the interest indicated in section · 4 is limited to a · registrable interest or any interest a person acquires in land or indeed that any interest should be converted into a registrable document. 24. The appellants have also under this ground submitted that sections 6, 33, 34 and 61 of the Lands and Deeds Registry Act were all relevant in the case at hand, for the reason that the position of the law is as stated in section 4 of the Act. The letter of 2 nd July, 1987 should have been converted into a deed .. J12 which could have been registered pursuant to section 61 of the Act. Since it was not registered, it was caught up by section 6 of the Act. Equitable principles according to the appellants, cannot be used to override sections 33 and 34 of the Act which state that a certificate of title is conclusive evidence of ownership as from the date of issue. Upon and after issue thereof, no action for possession, or other action for the recovery of any · land shall lie or be sustained against a Registered Proprietor holding a Certificate . of Title. The property belonged to the deceased and as such he had every right to bequeath the same to the 1st appellant. Further, the 1st respondent only came to claim the property twenty years later. 25. On the application of sections 33 and 34, the Court of Appeal stated among other issues, that these provisions only applied in the case of an argument between a title holder and a claimant without title. This, according to the appellants, was a misdirection at law as the argument holds against any person attempting to claim against a title holder. 26. On the exclusion of section 61, the appellants were of the view J13 that the Court should not have introduced arguments surrounding this provision because it was not a party to the proceedings. Having proceeded to introduce the said section, the Court made the erroneous conclusion that it was not applicable because the relevant provision was section 62. Section 62 does not create exceptions on the requirement for registration which should have been met by the 1st respondent as provided in section 61. 27. The decision by the Court of Appeal to disregard the provisions of sections 6, 33, 34 and 61 was erroneous as the law does not exempt the 1st respondent's documents from being registered and as such, this Court should reverse it and find that the grant (if any) was null and void for want of registration. 28. The second ground is that the Court erred in law and in fact when it introduced arguments relating to section 62 of the Lands and Deeds Registry Act which none of the parties raised in the lower court and further erred in law and in fact in the manner it interpreted the provisions of the said section. J14 29. The appellants have, in arguing this ground, submitted that the action by the lower Court is not supported by law and that the test cases before this Court point to the fact that the Court cannot introduce arguments on behalf of the parties. The appellants have in support of this proposition cited the case of Atlantic Bakery Ltd v Zambia Electricity Supply Corporation Ltd 1 in which this Court held that a court should confine its decision to the questions raised in the pleadings. 30. The arglj.ment relating to section 62 was not brought to the attention of the litigants and the appellant had no opportunity to place on record its response to the application of the said provision to the case. Further, this section was not relevant and is only relevant in the event that there was a transfer recognized by law. It was also applied incorrectly by the lower Court because it does not say anywhere that there is no need to register an assignment of the equity of redemption. 31. Section 62 only creates a legal duty on the part of any person to whom a mortgage is transferred to honor obligations of the transferor. This section does not take away the obligation under section 61 of the Act to register any transfer of property. JlS Section 61 was clearly envisaged by the Zambia National Building Society when it advised the 1st respondent the procedure for an assignment of equity of redemption which was done by letter. 32. There was no justification for failure to register the transaction between the deceased title holder and the 1st respondent. Had the Court of Appeal properly applied the statute it would have established that the Act merely goes to support section 61 which· requires the registration of various interests thus requiring registration of the transaction between the deceased and the 1st respondent. 33. The respondent opted to argue the first and second grounds together because they have basically raised the same issues. The respondents' argument is that what the lower Court did is exactly what was expected of any adjudicator sitting to resolve a dispute, especially an appellate court. They argued that a judge should not be confined to the submissions of the parties when resolving a dispute. He must tower beyond the submissions of the parties and interrogate the law as was held in Savenda Management Services v Stanbic Zambia J16 Limited2 , which is what the lower Court did. They further argued that a judge can tower beyond what is presented by the parties and make reference to provisions of the law that have not been referred to by the parties. 34. The respondents submitted that the lower Court could not be said to have gone beyond the scope of the pleadings in this case because whether or not the 'transfer' in issue was registrable arose from the pleadings. This is the issue that fell for determination and the position taken by the appellants was that the transfer should have been registered whilst the respondents for their part maintained that there was no need for registration yet. 35. Counsel for the respondents further submitted that the appellants' argument that the lower Court introduced section 62 was not meritorious and founded on a misapprehension of the law that a judge can only refer to provisions of the law referred to by the parties. 36. With regard to sections 6, 33, 34 and 62, the respondents submitted that the point to note is that what we have here is not an outright transfer of property by way of sale but a J17 transfer of the equity of redemption. The subject property was subject to a mortgage and what was transferred was the right to redeem the mortgage from the late Elijah Kapiya Fundafunda to the 1st respondent. The question therefore is whether this transaction is registrable and if so, what particular documents do you register? In addition, at what point is the transfer effected? 37. The respondents are of the view that the transaction was not registrable because at the time of the agreement, the property was subject to a mortgage. The property was therefore not transferrable to any other person. The interest that the late Elijah Kapiya Fundafunda had in the property was the equity of redemption and that is what he transferred. The argument that the transfer of the property should have been registered is therefore misconceived. What the appellants are missing is that the property was not transferrable until after redemption. Counsel for the respondents then referred us to the case of Errington v Errington3 in support of this argument. 38. Briefly the facts in Errington v Errington3 were that in 1936 a father bought a house for his son and daughter-in- law. He • J18 paid GBP250 in cash and borrowed GBPSOO from a building society on the security of the house, the loan being repayable with interest by instalments of 15s. a week. The house was in the father's .. name, and he was responsible to the building society for the repayment of the instalments. He told the daughter-in law that the GBP250 was a present to her and her husband, handed the building society book to her, and said that if and when she and her husband had paid all the instalments the house would be their property. 39. From that date onwards the daughter-in-law paid the instalments as they fell due out of money given to her by her ' husband. In 1945 the father died and by his will left the house to his widow. Shortly afterwards the son left his wife. 40. In an action by the widow against the daughter-in law for possession, it was held in that case that the daughter-in-law and her husband had a contractual or equitable right to remain in possession. so long as they paid the instalments which would grow into a good equitable title to the house when all the instalments were paid, and therefore, the widow was not entitled to an order for possession. 41. At page 153, Lord Denning had this to say: J19 "It is to be noted that the couple never bound themselves to pay the instalments to the building society, and I see no reason why any such obligation should be implied. It is clear law that the court is not to imply a term unless it is necessary, and I do not see that it is necessary here. Ample content is given to the whole arrangement by holding that the father promised that the house should belong to the couple as soon as they paid off the mortgage. The parties did not discuss what was to happen if the couple failed to pay the instalments to the building society, but I should have thought it clear that, if they did fail to pay the instalments, the father would not be bound to transfer the house to them. The father's promise was a unilateral contract - a promise of the house in return for their act of paying the instalments. It could not be revoked by him once the couple entered on performance of the act, but it would cease to bind him if they left it incomplete and unperformed, which they have not done. If that was the position during the father's lifetime, so it must be after his death. If the daughter-in-law continues to pay all the building society instalments, the couple will be entitled to have the property J20 transferred to them as soon as the mortgage is paid off, but if she does not do so, then the building society will claim the instalments from the father's estate and the estate will have to pay them. I cannot think that in those circumstances the estate would be bound to transfer the house to them, any more than the father himself would have been." In the earlier case of Pearce v Morris4 (1869) 5 Ch App 227, the Court held that: "Any person interested in the equity of redemption is entitled to redeem, and when, being so entitled, he tenders the mortgage money and interest, he having a part in the equity of redemption is entitled to the delivery of the title deeds and have a conveyance of the property." 42. On the basis of Pearce v Morris4, counsel for the respondents submitted that by virtue of the assignment or transfer of the equity of redemption, the 1st appellant became entitled to redeem the mortgage and upon redemption he is entitled to the delivery of the title deeds and to have a conveyance of the property. The transfer was not therefore the 'usual' transfer of property which is covered under section 61 of the Act. This provision was sufficiently interrogated by the lower Court J21 which found that the prov1s1on 1s inapplicable to land subject to a mortgage. 43. Section 61 when interrogated, makes reference to transfer of . land by execution of a deed of transfer in Form 6. An examination of Form 6 shows that it applies to outright sales namely where consideration has been paid. Form 6 makes express provision for consideration to be stated and for acknowledgment of the payment. Thus section 61, envisages situations where land has been sold, consideration has been paid and payment has been acknowledged. 44. When one considers the incidents of a mortgage, it becomes quite clear that section 61 is not applicable. In a mortgage, there is no sale of the property and no consideration. 45. We must immediately correct the impression being created in this part of the submission. While we agree that a mortgage is not the same as a sale, there is consideration in a mortgage as the lender is parting with money in exchange for the property as security. The appellants then submitted that also, and most importantly, there is no one off payment. Section J22 61 is therefore not applicable and the lower Court cannot thus be faulted when it held that the section did not apply. This is why the lower Court made reference to section 62 of the Lands and Deeds Registry Act which is the only provision in the Act which talks about transfer of equity of redemption. 46. Section 62 makes no provision for registration of a property subject of a mortgage. The argument that the lower Court misinterpreted section 62 is therefore not meritorious. There is no law that provides for registration of the transfer or assignment of the equity of redemption. There was therefore no requirement to register the transfer in this case. 47. Counsel for the respondents submitted that conveyance or transfer of a property occurs. at the time of redemption. Sections 6, 33, and 61 are therefore not applicable and the lower Court cannot therefore be faulted when it held that these sections do not apply. Assuming that the lower Court was wrong when it held that section 61 did not apply, the appellants submitted that there would still be no need for registration of the transfer in this case. J23 48. What the parties had was an agreement to transfer the property upon redemption of the mortgage. Since the property was still subject of a mortgage, it could not be transferred until it was redeemed. The transfer had therefore not reached the deed stage yet. 49. The first and second ground of appeal cover a substantial part of this appeal. 50. Numerous arguments have been advanced with regard to the interpretation and effect of sections 4, 6, 33, 34, 61 and 62. It 1s important to appreciate that when dealing with conveyancing, registration of documents does not occur in a vacuum. The Lands and Deeds Registry Act has adequate provisions to cater for numerous situations. To start with, section 4 provides that: "Every document purporting to grant, convey or transfer land or any interest in land, or to be a lease or agreement for a lease or permit of occupation of land for a longer term than one year... must be registered within the times hereinafter specified in the Registry or in a District Registry if eligible for registration in such District Registry:" 51. 'Document' is not defined in the Act. Black's Law Dictionary defines document as: "Something tangible on which words, symbols or marks are recorded. The deeds, agreements, title papers, letters receipts, and other written instruments used to prove a fact." The two letters dated 2 nd July, 1987 therefore technically qualify to be documents, but the question still remains whether they are registrable under the Act. To answer this question, we need to consider the effect of documents relating to land transactions generally. 52. In an ordinary conveyance, parties normally execute a contract of sale. The contract of sale is not normally 1egistered but a prospective purchaser may, if he wishes, register a caveat together with the contract of sale. That registration on its own does not convey the property without among other things, the requisite certificate of title, consent, tax and assignment. 53. So, it matters not whether parties have signed a memorandum relating to the land or whether, as in this case, there is an J25 assignment of equity of redemption. The parties still require to formalize the transaction by drawing up the necessary documents and registering them. 54. Put simply, the two letters of 2 nd July, 1987 on their own are not registrable. They require an assignment of an equity of redemption, which is a conveyance by the mortgagor in which he sells the equity of redemption to the purchaser and the purchaser gains legal ownership of the property when the mortgage 1s discharged. This is · what actualizes the transaction. 55. It is not just a transfer by operation of law. That 1s why section 62 states that a transferee must; ". .. pay the interest and other payments thereafter to become due by virtue of such mortgage at the time and in the manner therein specified for payment thereof, and to pay the principal sum when and as the same becomes due, and to keep harmless and indemnified the transferor in respect of such payments, and in respect of all liability on account of the future observance of the covenants and conditions on the part of the transferor in such mortgage expressed or implied." J26 56. The covenants mentioned 1n . section 62 are what would be included in an assignment involving an equity of redemption. It is not therefore correct as has been argued by the appellants that no law provides for registration of the transfer or assignment of the equity of redemption. A close reading of section 62 shows that land can be transferred subject to a mortgage which implies that an appropriate document can be drafted to reflect the conditions set out in section 62. 57. In the case at hand, the mortgage was discharged on 27 th March, 1990, so the argument that it should have been registered pursuant to section 62 lapsed with the discharge of the mortgage and is therefore inapplicable. Where does that leave the parties given the fact that the late Elijah Kapiya Fundafunda executed a will on 11 th October, 1992 bequeathing the same property to his second wife and her children and then died on 21 st August, 2005? 58. The appellants have advanced the argument that the letter written to transfer is not a deed. It should have been converted into a deed which could then have been registered pursuant to section 61 of the Act which provides for transfer of J27 property by a registered proprietor. We agree that would have been the appropriate thing to do, given the fact that the mortgage had been discharged. Both the late Fundafunda and his son did not seem bothered by the niceties of formalizing the transaction. The son's explanation is that he was outside jurisdiction and only became aware after the will had been read out. There is no explanation from the late Fundafunda. We can only surmise that both parties were unconcerned with registration formalities because of the father and son relationship they had. 59. This probably explains why the son only commenced proceedings in 2007 after realizing that his father had after all not kept his side of the bargain. 60. The respondents are of the view that time should run from when the 1st respondent discovered the existence of the will which discovery was in 2006. The appellants on the other hand are of the view that the time should run from 2 nd July, 1987 when the letter purporting to transfer was written. 61. We will start with the letter of 2 nd July, 1987. It is not possible to reckon time from 2 nd July, 1987 because the mortgage was J28 only discharged on 27th March, 1990. Even assuming that time ought to have been reckoned from 27th March, 1990, the appellants are caught up by section 2(7) of the Limitation Act 1939 which stipulates that limitation of time does not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief. 62. The High Court, after citing a number of authorities such as Banque Financiere de la Cite v Pare (Battese) Ltd and Others5 , Lipkin German (a firm) v Karmale Ltd6 and Burton Finance Ltd v Speirway Ltd7 on unjust enrichment and subrogation (which we agree with and see no need to repeat here), found that this was essentially a claim for equitable relief and as such time did not run. 63. Further, this was a unilateral contract which on the authority of Errington v Errington3 could not be revoked once the son had settled the mortgage debt. The argument by the appellants that the payment of K5,000.00 by the father to the building society was an indication that the 1st respondent did not pay the mortgage and could not therefore rely on Errington v Errington3 is misplaced. This so because the J29 K5,000.00 which was paid, did not negate the fact that the father had offered the property to the son on condition that he took over paying for the mortgage. 64. It was not a condition that if he paid some money after what he committed to in the letter then the unilateral agreement would fall away. It matters not that there were instances that the son defaulted in paying the instalments as and when they fell due because ultimately, he cleared the mortgage. We therefore agree with the Court of Appeal, that the son is entitled to the property in its entirety and not the 73%/27% ratio distributed by the High Court as there was no justification for apportioning the property. 65. The argument relating to sections 33 and 34 of the Act with regard to the effect of the issuance of a certificate of title, and restriction on ejectment after issuance of a certificate of title is misplaced on the facts of this matter. While it is accepted that a certificate of title shall be conclusive as from the date of its issue, which in this case was 3 rd November, 1965, the appellants cannot rely on this argument because the certificate of title was issued prior to the agreement between •· , J30 father and son. In other words, sections 33 and 34 are not retrospective in nature. 66. The certificate of title issued on 3 rd November 1965 cannot be used to bolster an argument for an event which has no bearing on the certificate of title issued earlier. The fact that the certificate of title was issued to the deceased is not in dispute. What is untenable is that the appellants can now use that argument to escape any challenge relating to the property. A certificate of title is conclusive to the extent mentioned 1n section 33 but this does not mean that a title holder cannot be sued over matters arising out of or connected with the certificate of title. 67. Accepting the appellant's argument would in effect mean that a title holder cannot be compelled to perform his contractual obligations. 68. We must therefore disagree with the arguments so passionately canvassed by the appellants that an action for possession or other recovery shall not lie or be sustained against a registered proprietor holding a certificate of title and agree with the Court of Appeal for dismissing it. J31 69. We must at once state that there is a fundamental difference between pleadings and statute law. While it is accepted that a court has no jurisdiction to set up a different or new case for the parties and that the parties are bound by their pleadings, this cannot be extended to statute law which can be raised at any stage of the proceedings. 70. To accept the argument that a court must turn a blind eye to a statute simply because it has not been .raised by the parties would in and of itself make a law dealing with a particular aspect of a case irrelevant even though it may be cardinal to the decision of the case. That would be incorrect as courts are expected to interpret the law no matter how late the hour and apply it to any given set of facts. We have said so in a number of decisions before. In Shoprite Holdings Limited and Another v Lewis Chisanga Mosho and Another8 we held that there would be no point in appealing if an appeal was only a rendition of the arguments in the court below without room for developing an argument on the same set of facts and issues. 71. In Admark Limited v Zambia Revenue Authority9 we held, citing Order 18 Rule 11 of the Rules of the Supreme Court, J32 that a party may at trial raise a point of law, even though it was not pleaded in his defence or keep the point open for argument on appeal. For example, a jurisdiction point, being one of law can be raised at any time thus in Road Transport and Safety Agency v First National Bank Zambia Limited and Josephine Milambo 10 , we held that even if the question of jurisdiction has not been raised in the court below, this Court is at liberty to consider it because of the consequences that flow from a court acting while wanting jurisdiction. 72. Even more on point is the case of Nevers Sekwila Mumba v Muhabi Lungu 11 in which we emphatically held that: "This Court will however affirm or overrule a trial court on any valid legal point presented by the record, regardless of whether that point was considered or even rejected." 73. We therefore dismiss the argument that it was erroneous for the lower Court to make reference to section 62 of the Lands and Deeds Registry Act as section 62 was germane to the determination of this matter and in any event the lower Court J33 was at liberty to consider it even though it had not been raised earlier. 74. Contrary to what the appellants have argued, the letters of 2nd July, 1987 do not amount to an assignment as provided for in section 62. 75. Section 62 requires the transferee to pay interest or other payments thereafter to become due by virtue of the mortgage and also to indemnify the transfer. All these undertakings are stated in a formal deed of an assignment of equity of redemption. 76. It follows from what we have said above that even though on the facts of this case, an assignment should have been registered under section 61 of the Act, it does not alter the fact that sections 4, 33, 34 were irrelevant to the registration process in view of section 2(7) of the Limitation of Actions Act, 1939 and also in view of what was being challenged was the fact that the late Elijah Kapiya Fundafunda had bequeathed property which he had earlier on agreed to assign to his son on the understanding that he would clear the mortgage. 77. The challenge had nothing to do with the certificate of title issued to the late Elijah Kapiya Fundafunda. The Court of Appeal was also perfectly entitled to rely on section 62 of the Act for the reasons given above. The first and second grounds of appeal have no merit and are accordingly dismissed. 78. The third ground of appeal is that the court erred in law and in fact when it held that there was no inordinate delay between the time the mortgage was discharged and the date of commencement of the action to assert the 1st respondent's right to the equity of redemption. 79. The appellants' argument in respect of the third ground of appeal is that the finding by the Court of Appeal that the delay by the respondent of 1 7years and 6 months was not inordinate was perverse within the meaning of Marcus Achuime v The Attorney General 1 2 because the mortgage was discharged on 27th March, 1990 but the 1st respondent commenced proceedings on 14th September, 2007. The appellants have argued that the bequest of the property was not the primary factor in commencing the action but the caveat. There is no mention whatsoever of the Will in the 1st respondent's J35 testimony hence the cause of action could not have ansen after the discovery of the Will but when the grant was effected. 80. The appellants' argument is that the cause of action arose when the 1st respondent's right in the property materialized which on the facts is the date the mortgage was discharged. The delay prejudiced the deceased who has no means of defending his grant under the Will. Therefore, the doctrine of laches, acquiescence and delay should apply in this matter.· 81. The respondents have in response, argued that the delay is not inordinate. This was so because the doctrine of laches and delay only applies when a person accused of delay or laches had knowledge of the underlying facts giving rise to the claim. In this case, the 1st respondent had no knowledge of the fact that the property had been bequeathed until after his father's death sometime in 2006 and he commenced this action in 2007. The issue of delay or laches did not therefore anse. The right to bring this action did not arise when the mortgage was finally discharged in 1990, . but when the 1st respondent discovered that the property had been bequeathed and this was in 2006. J36 82. We have earlier alluded to the question of whether or not the delay was inordinate or the cause of action was out of time given the time the 1st respondent took to commence the cause of action and we stated that ordinarily, he would have been out of time but for the fact that this was a claim in equity for which time does not run. 83. Section 2(7) of the Limitation Act, 1939 states so and the authorities (for instance Butler v Rice 13 and Banque Financiere de la Cite v Pare (Battese) Ltd and Others5 ), show that where one settles the debt of another 1n circumstances not amounting to the g1v1ng of the money so expended to the debtor as a gift, equity will not allow the person whose debt has been settled to be unjustly enriched at the expense of the one who has settled the debt. 84. Furthermore, under the principle of subrogation as explained in the case of Burton Finance Ltd v Speirway Ltd, 7 " ... where one person advances money on the understanding that he is to have certain security for the money he has advanced and for one reason or another, he does not receive the promised security. In such a case he is nevertheless to be J37 subrogated to the right of any other person who at the relevant time had any security over the same property and whose debts have been discharged, in whole or in part, by the money so provided by him, but of course only to the extent to which his money has in fact, discharged their claims." 85. We have therefore come to the conclusion under this ground of appeal that whereas there may have been inordinate delay under different circumstances giving rise to a claim being dismissed due to laches and delay, such delay on the facts of this matter is not a factor on account of section 2(7) of the Limitation Act, 1939. The third ground of appeal cannot succeed and it is dismissed. 86. The fourth ground of appeal 1s that the Court of Appeal misconstrued the appellant's third ground of appeal. According to the appellants, their argument was that the right to redeem was dependent on the 1st respondent honouring his obligations as at 2 nd July, 1987 in full. Since he did not, his rights should lapse because the deceased was forced to make a contribution. In addition, failure to claim within a reasonable time should have caused any rights the 1st J38 respondent had, to lapse. The lower Court misconstrued the ground to mean that the 1st respondent should have redeemed the mortgage on 2 nd July, 1987 and used section 62 to disregard the ground. 87. The respondents have, in reply to the fourth ground of appeal, argued that the Court of Appeal did not misconstrue the ground of appeal at all. What the appellants are saying is exactly what was captured by the Court of Appeal. The issue under that ground was redemption of the property by discharge of the mortgage and this was the issue that was considered by the lower Court under this ground. 88. We have considered this ground and the Court of Appeal judgment. We have also read the appellants' third ground of appeal in the Court below which reads as follows: "3. That the trialjudge erred in law and in fact when (she) held that the (1 st) respondent's right of equity of redemption was valid." 89. The argument by the appellants in the Court below was that: J39 " we submit that the 1st respondent's right to equity of redemption was subject to him paying the mortgage in full as at 2 nd July, 1987 and since he did not pay the mortgage as agreed his equitable rights lapsed for the simple reason that a party cannot seek equity when he has soiled hands." The Court of Appeal's reaction to that submission was that the submission was not supported by section 62 of the Lands and Deeds Registry Act which provides for the transfer of the equity of redemption. 90. We see nothing wrong with the position taken by the Court of Appeal in respect of this ground. The Court of Appeal was simply stating, and we agree with it, that section 62 does not require a party to redeem a mortgage simultaneously with the agreement between the parties. In our view, section 62 provides the mechanism by which a party who is stepping into the shoes of a mortgagot assumes such responsibilities. The fact that the father made a payment of K5,000.00 does not negate the transaction nor does the time taken to redeem the mortgage. In any event, the agreement does not make it a condition for payment to be made in full by the 1st respondent. The fourth ground of appeal must also fail and it is equally dismissed. 91. The fifth ground of appeal is that the court erred in law and in fact when it disregarded the contribution made by the deceased title holder during the life of the mortgage and at the point ofdischarge of the mortgage. 92. The fifth ground is in connection with the KS,000.00 payment the deceased made towards discharging the mortgage. The appellants have again argued that even though the parties had agreed that the 1st respondent would pay, and take over financial obligations relating to the mortgage, he did not honour this obligation in full. As such, equity should come to the rescue of the estate of the deceased and accord them the portion which the 1st respondent failed to honour. Further, since the Court of Appeal applied the principles of equity to award the property to the 1st respondent, it should have applied principles of equity to grant the Estate of the late Fundafunda the portion paid by him so that the 1st respondent is not unjustly enriched. 93. The respondents have countered this argument by citing J41 Errington v Errington3 , that an arrangement such as this one cannot . be revoked once the transferee enters on performance of the act. Similarly in this case, there was no revocation of the agreement to transfer the property in its entirety to the 1st respondent. The 1st respondent did not ,cease to perform his obligations. He performed them in full and redeemed the mortgage. Having redeemed the mortgage, the 1st respondent is entitled to the property in its entirety in accordance with the agreement with his father. Payments made by the deceased, if any, did not alter the agreement to transfer and neither did they revoke the agreement. 94. The respondents have argued that if indeed, the agreement was revoked, the deceased would have been the one to redeem the mortgage, but he did not. The Court of Appeal could not therefore be faulted for holding as it did because the agreement between the parties was to transfer the entire property to the 1st respondent upon redemption of the mortgage. Public policy, according to the respondents, therefore demands that the agreement · between the 1st J42 respondent and the deceased is upheld. The role of the court is to give effect to the agreement by transferring the entire property to the 1st appellant. 95. We agree with the respondents that there is no merit in this ground of appeal. When the father agreed to transfer the property to his son, there was no condition that should he thereafter make any payment to the building society, then that payment should be considered as a contribution entitling him to a portion of the property. What was to be transferred was the whole property and not a portion even if the father contributed anything further. We therefore dismiss this ground of appeal. 96. The sixth ground of appeal is that the court below erred in law and fact when it held that the property was legally transferred to the 1st respondent. The appellants have in their sixth ground of appeal argued that since the process of transferring title was not done as required by section 4 of the Lands and Deeds Registry Act as read together with section 61 of the Act, no legal transfer took place. There was no justification for J43 failure to register the transfer which even the Court of Appeal recognized as necessary but still upheld the transfer. 97. The 1st respondent had been guided by the building society as to the procedure he had to follow for the assignment to take place but he disregarded the advice. The Court of Appeal stated that there was an error with that guidance and as such disregarded the handwritten note on the letter of 2 nd July, 1987. The Court had no jurisdiction to alter the contents of any document. 98. The respondents have argued that the' persistent arguments around section 61 of the Act do not help the appellant. Section 61 does not apply to this case because there is no outright sale of the property. · What was transferred was the equity of redemption. The property itself was only going to be transferred after redemption. There was therefore no need for registration. 99. We must under this ground start by stating that the Court of Appeal did not err by disregarding the note. It was merely interpreting what it thought was the position at law. Contrary to the appellants' argument, the Court of Appeal did not alter J44 the contents of any document. However, in its attempt to interpret the document, it fell into error when it held that the agreement between the father and son was not an assignment of equity of redemption but an outright transfer of the equity of redemption under section 62. The handwritten note was in fact correct when it stated that Mr. Banda should reply and advise the applicant the procedure for an assignment of equity of redemption. 100. We must clarify that what was 1n train at the material time was the assignment of what was due to the building society and thereafter upon complying with the terms and conditions as stipulated in section 62, the property was going to be transferred to the son. An assignment is synonymous with a transfer and it seems to us that the Court below contradicted itself when it held that it was not an assignment but an outright transfer, as an assignment is by its very nature an outright transfer. However, this explanation does not assist the appellants in any way as it does not nullify the transaction for the reasons given earlier. This ground of appeal has no merit and it is dismissed. J45 101. The seventh ground is that the court erred in law and in fact and even contradicted itself when it allowed the cross-appeal and further erred when it indirectly granted an order for specific performance. The argument here 1s that the respondents did not comply with Order X Rule 9 (16) of the Court of Appeal Rules by not providing a list of authorities. 102. The argument by the respondents is that the appellants' argument under this head is at variance with the ground of appeal as framed. The appellants' argument under this ground is that the Court of Appeal did not adjudicate on the argument they raised that the respondents did not file a list of authorities. According to the appellants, the Court of Appeal would have dismissed the cross appeal had it considered this argument. 103. There is no merit in this argument as Order X Rulel 1 of the Court of Appeal Rules contains the procedure for filing cross appeals. According to this rule, a cross-appeal should be filed no more than seven days after the service on the respondent of the record of appeal. The respondents complied with this rule. The cross-appeal was therefore properly before Court. Order X J46 Rule 9 (16) relied upon by the appellants has nothing to do with cross-appeals. 104. We agree with the respondents that the arguments presented under ground seven are at variance with the ground of appeal as framed. The point to note here is that Order X Rule 11 of the Court of Appeal Rules provides for how and when to file a respondent's notice of cross-appeal. Order X Rule 9(16) has nothing to do with filing a cross-appeal. It deals with the filing of heads of argument which are different from the cross-appeal as they are responding to the appellant's heads of argument. Quite clearly there is no merit in this ground of appeal. It is therefore dismissed. ros. The eighth ground is that the court below erred in law and in fact when it placed reliance on letters produced by the 1st respondent despite the contradictions inherent in the latter two letters. 106. The issue 1n the eighth ground of appeal relates to the correspondence in connection with whether or not the certificate of title was burnt. Doubt was cast on all the letters from the building society because they were alleged to contain • J47 false information. The certificate of title was inspected and even produced at trial. This fact was not disputed or challenged by the respondents in the High Court and the Court of Appeal. 107. The response to this ground of appeal by the respondents was that the letters during the trial and on the authority of Kajimanga v Chilemya 14 , an objection cannot be validly made after trial of the matter has closed. The objections were only raised on appeal which was too late in the day. It was further argued that the two letters dated 28th May, 2007 could not be used as a basis for questioning the authenticity of the letters and lead to a conclusion that the letters are false without any evidence to back up such an allegation. 108. The respondents have argued that no evidence was led by the appellants to prove their allegations regarding the letters. The letters had no bearing on either the holding of the Court of Appeal or the High Court. 109. A perusal of the record of appeal at page 233 shows that an original provisional certificate of title at entry No. 26 was lost and a duplicate issued. This lends credence to the building • J48 society letter of 28th May, 2007 which stated that the original certificate of title was burnt in the building society fire. We therefore do not agree with the argument by the appellants that the letters contained false information merely on the assertion that there is doubt as to the authenticity of the letters. If there was any doubt steps should 'have been taken by the appellant to prove that the letters were false. 110. The ninth ground is that the court erred in fact when it held that there was no evidence that the original certificate of title was in the hands of the 1st appellant and at the same time ordered that the title in the appellant's possession be surrendered to the 1st respondent. We have dealt with this ground in the eighth ground of appeal and we see no need to belabour the point that the existence, condition or custody of the certificate of title was quite irrelevant to the parties' legal rights as it would only be relevant after establishing their respective legal rights for purposes of registration. Unnecessary time and energy was spent on this ground of appeal. It has no merit and it is also dismissed. • J49 111. The tenth ground is that the court below erred in law and in fact when it held that the 1st respondent's claim was not statute barred and that it fell within the exception provided in section 2(7) of the Limitation Act, 1939. Again, we do not see the need to repeat ourselves on the effect of section 2(7) of the Limitation Act, 1939 as we have dealt with it earlier and held that it applies. Section 2(7) of the Limitation Act, 1939 provides that it does not apply " ... to any claim for specific performance of a contract or for an injunction or for other equitable relief. .. " As such, the appellants cannot seek solace in it. It has no merit and it is dismissed. Conclusion 112. This appeal could have been argued on at most three grounds namely: what was the effect of the letters in relation to registration under the Act; what is an equity of redemption under section 62 of the Act and how is it registered and whether or not the claim was time barred. The appellants ' . JSO should have avoided unnecessary arguments which had · no real bearing on the outcome of the appeal. It is quite apparent from what we have. said above that this appeal cannot succeed on all grounds. The appeal is dismissed with costs to the respondents to be taxed in default - ~ agreement. A. M. WOOD SUPREME COURT JUDGE _-<"' ..-· I,_;_,. '._~l_ ti:;'.,£ .. -· 9 • e Ille e O • 0 Cle•. 9 ■ e ~---~~~-'•ell·■■ t,. ■■■ II ■■■■■■■ O ■ I ■■■■ c.~MANGA SUPREME COURT JUDGE