Raimo Demetria & Another v Junior (152 of 2014) [2019] ZMSC 241 (28 May 2019)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 152/2014 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: RAIMO DEMETRIA APPELLANT DAVMIN ENTERPRISES LIMITED 2ND APPELLANT AND MUSHOTA MUSHOTA JUNIOR RESPONDENT Coram: Mambilima, CJ, Kabuka and Chinyama, JJS. On the 9 th May, 2017 and 28 th May, 2019. FOR THE APPELLANTS Mr M. P. Muyawala, Messrs Dzekedzeke & Company. FOR THE RESPONDENT : Ms. M. M. Muyambango, Messrs Dove Chambers. JUDGMENT KABUKA, JS, delivered the Judgment of the Court. Cases and Legislation referred to: 1. Anti -corruption Commission v Barnet development Corporation Limited (2008) ZR 69 (SC). J2 2. R v Chancellor of the University of Cambridge. 3. Zambia Revenue Authority v Jayesh Shah SCZ Judgment No. 10 of 2001. 4. Fanny Muliango and Samson Muliango v Nandai Magasa and Farming Compound Limited. 5. Victoria Namakando Zaza v Zambia Electricity Supply Corporation Limited (2001) ZR 107 (SC). 6. Water Wells Limited v Wilson Samuel Jackson ( 1984) ZR 98 (SC). Other works referred to: 1. Halsburys Laws of England Vol. 1(1) 4 th Edition, reissue, Paragraph at page 157. Introduction 1. This appeal by the appellants 1s against a judgment of the High Court dated 24 th April, 2013 which declared the respondent owner of property known as Stand No. 5529, Ndola. 2. The declaration was premised wholly on the evidence of the respondent's witnesses, on account of persist ent failure on the part of the appellants to attend various court sittings that were held to hear their defence to the respondent's claims. 3. The appeal questions whether the trial court properly proceeded to render a judgment when, in the absence of proof J3 of service of the notice of hearing, the appellants were not accorded an opportunity to call evidence in defence. Background 4. The background to the matter is that, the respondent, Mushota Mushota Junior, was laying claim to a piece of land described as Stand No. 5529, Ndola, ("the property") and relied on a Certificate of Title No. L7656, in his name. 5. According to the respondent, this property was assigned to him by his late father, Dr Remmy Mushota in 1999 and the transaction is evidenced by an entry on the Lands Register of 22 nd December, 2000, to that effect. Dr Mushota who was the first offeree, had been ill for a considerable period of time, as a result of which the property remained undeveloped, unti l his demise on 7 th January, 2000. 6. The property was thus, amongst many others, that were subject of notices of re-entries issued by the Ministry of Lands. 7. Upon making representations to the Ministry of Lands, the notice of re-entry on the property was withdrawn on J4 considerations of the prolonged illness of the original registered owner. It was not amongst properties subsequently issued with certificates of re-entries that were advertised in the Zambia Daily Mail, a public newspaper. 8. The respondent thereafter proceeded to take necessary steps required to develop the property. In April, 2007 he applied to the Ndola City Council for development permission and later, caused digging of the foundation for the boundary wall. He also applied for connection of water from the Kafubu Water and Sewerage Company. 9. Soon after undertaking these preliminary developmental measures, the respondent noticed that someone had deposited a heap of construction stones on the property. The respondent was thus prompted to conduct a search at the Ministry of Lands on 28 th October, 2008 which confirmed he was still registered owner of the property. 10. It is on the strength of that result that , the respondent made inquiries to ascertain who had brought the construction stones on the property and the appellants were identified as JS the culprits. When the respondent caused a letter to be written to them to vacate, the appellants raised an adverse claim that they were in fact the owners of the property. Pleadings and evidence before the High Court 11. Left with no option, the respondent commenced an action in the High Court against the appellants on 1st April, 2009, seeking: (i) a declaration that he is the lawful owner of the property; (ii) an order for vacant possession; (iii) an injunction restraining the appellants from developing the property until final determination of the matter; (iv) mesne profits from 2008 until delivery up of vacant possession by the appellants; and (v) costs of the action. 12. The substance of appellant's defence, to the extent of relevance for determination of the respondent's claims was that, a Major Godfrey Mulenga who had a letter of offer from the Ministry of Lands, in turn, offered the 2nd appellant the property in issue. The 2 nd appellant in good faith bought the property from him on 16 th March, 2007 at the purchase price of K40,000.00. J6 13. Thereafter, the appellants complied with all laid down procedures for obtaining beneficial interest in the property. They paid all requisite fees to the Ministry of Lands and have since been awaiting issuance of a Certificate of Title to the 2 nd appellant. The 2 nd appellant accordingly counter-claimed for a declaration and order, that it is the bona.fide owner of the property, Stand No. 5529, Ndola. 14. Although the record of appeal does not show when trial commenced, it nonetheless shows that the respondent closed his case on 12th April, 2011 after calling three witnesses. The matter was then adjourned on an application by counsel for the appellant, Mr Magubbwi, to 27 th April, 2011 at 09:00 hours for defence evidence. 15. There is no indication from the record, again, as to what transpired on the 27 th April, 2011. What the record shows is that there was one adjournment over a year later, on 7 th August, 2012 as the appellants' counsel was reported to be unwell by his counterpart counsel for the respondent. Hearing of the defence was accordingly further adjourned to 20 th September, 2012. J7 16. On the 20 th September, 2012 there was no attendance by the appellants' counsel, yet again, upon which counsel for the respondent, after referring to persistent failure to attend court on the part of the appellants and to call evidence to support their defence, implored the court to proceed to render judgment on the evidence before it and to grant the respondent's claims. Consideration of the matter by the trial court 17. In dealing with the matter, the learned High Court judge considered that the respondent was relying on a Certificate of Title in his name, as registered owner of the property in issue. She referred to section 33 of the Lands and Deeds Registry Act and the decision of this Court in the case of Anti- Corruption Commission v Barnet Development Corporation Limited 1 • In construing section 33, we there held that, a Certificate of Title is conclusive evidence of ownership of land by the person in whose name it 1s registered. 18. On the evidence before her, the learned trial judge found that, in the absence of any allegations of fraud on the part of the JS respondent in the acquisition of the property, there was valid evidence of his ownership of the property in form of a Certificate of Title. Upon further considering that the appellant had been given an opportunity to present the evidence in defence, on a number of occasions but there had been persistent failure on their part to attend court, the trial judge accordingly, granted all the respondent's claims as earlier set out in paragraph 7 of this judgment. 19. A subsequent application to set aside the judgment was declined on the basis that there could be no defence on the merits against a holder of a Certificate of Title. Grounds of Appeal to this Court 20. Dissatisfied with the judgment rendered in favour of the respondent, the appellants have now come to this Court on appeal , advancing three grounds stated as follows: 1. The learned trial judge erred in law and fact when she did not address her mind to the fact that the appellants were not given a chance to call witnesses at trial. 2. That learned the proceeded there was proper service appellants. to deliver judge erred in law and judgment without of the notice fact when she that of hearing on the confirming J9 3. The learned trial judge erred law when that the appellants had a counterclaim in she did not the against consider respondent. The arguments on appeal 21. At the hearing of the appeal, counsel for the parties on both sides informed the court that they would wholly rely on their written heads of argument filed on record. 22. In ground one, the appellants' argument was that they were not given a chance to call witnesses at the trial and that the n.iles of natural justice, particularly the right to be heard, was thereby violated. The appellants cited the case of R v Chancellor of the University of Cambridge 2 and further referred to Halsbury's Laws of England, Vol. 1(1) 4 th Edition, reissue, paragraph 84 at page 157 where the learned authors underscore the legal position that, the principles of natural justice must be observed by courts, tribunals and all persons having a duty to act judiciously. 23. The argument in ground two was that, the learned judge should have confirmed that there was proper service of the Notice of Hearing on the appellants before proceeding to deliver the judgment. JlO 24. That argument was stretched to ground three, where the appellants contended that, a matter ought to be heard on its merits and proceed to trial, than be hampered by procedural irregularities. The cases of Zambia Revenue Authority v Jayesh Shah 3 and Fanny Muliango and Samson Muliango v Nandou Magasa and Farming Compoud Limited 4 were relied upon to support the argument. 25. The submission on ground three was that, the case in casu presents a number of triable issues which should have been considered by the learned trial judge. That in the interests of justice, the appellants should have been given an opportunity to present their case and substantiate their claim against the respondent. 26. In their written arguments and submissions in response, counsel for the respondent in grounds one and two argued that, the appellants were given several opportunities to give their evidence in defence but failed to attend court. 27. On the date in question, in particular, counsel for the respondent informed the court, she had seen her counter- Jl 1 part Mr Magubbwi, counsel for the respondent within the court precincts and applied for the matter to be stood down for 30 minutes to enable her contact him. Upon contacting Mr Magubbwi, his response was that, he had already left Lusaka, was on his way back to Ndola and could not return for the court hearing. 28. The submission in that regard was that, the appellants' claim to have been denied an opportunity to call their witnesses was not true. And, further that, the date when the matter was adjourned for the next hearing had been given in the presence of counsel for the appellants, Mr Magubbwi. 29. In response to ground three, it was argued that the trial court cannot be faulted for having considered that the respondent had title to the property in issue as the law is clear that a Certificat e of Title is conclusive evidence of ownership of land by the person in whose name it is registered. The submission on the point was to the effect that, the appellants in their defence and counter-claim did not plead any fraud in the manner the respondent had acquired title to the property. 30. Counsel for the respondent in conclusion submitted that, an J12 appellate court can only upset findings of fact made by a trial court where there is a legal basis for doing so. She cited the case of Victoria Namakando Zaza v Zambia Electricity Supply Corporation Limited 5 , as authority for the submission. We were further urged to consider that, the appellants claimed to have purchased the same property from a person they acknowledged had no title, when the property had not been withdrawn from the duly registered owner, as confirmed by relevant entries in the Lands Register. Consideration of the appeal by this Court a.n,d decision 31. We have considered arguments and submissions from counsel on both sides, the law to which we were referred against the evidence on record. We propose to deal with grounds one and two together as the issues raised are related and thereafter, proceed to consider ground three. 32. Grounds one and two of the appeal fault the trial judge for having proceeded to deliver judgement on the basis of the respondent's evidence without hearing the appellants. The appellants argue that, in the absence of evidence showing Jl3 that they were properly senred with a notice of hearing, that approach denied them a chance to call witnesses. 33. The underlying issues raised in grounds one and two, in our view, are (i) whether the appellants had notice of the court hearing which according to them, would have justified the court's decision to proceed further with the matter, in their absence; (ii) having so proceeded, whether the court properly declined the appellants' application to set aside its judgment in the matter, in the circumstances. 34. Starting with the first issue in (i), Order 35 rule 3 of the High Court Rules addresses the question of how the court is to proceed at the trial when there is non -attendance of the defendant at the hearing and provides that: "3. If the plaintiff appears and the defendant does ·not appear or sufficiently excuse his absence, or neglects to answer when duly called, the court may upon proof of service of notice of trial, proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant." J14 35. The second issue in (ii), relates to the setting aside of a judgment made in the absence of a party and is provided for in Order 35 rule 5, which reads as follows: "5. Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the court upon such terms as may seem fit." (Underlining for emphasis supplied) 36. In terms of 0.35 rules 3 and 5 as quoted in paragraphs and 35 above, a trial court has discretion firstly, to proceed and hear a matter in the absence of a party and to render a judgment. Such judgment may only be set aside in the discretion of the court, 'on sufficient cause shown.' 37. When considering what should inform the court on whether or not to set aside a judgment obtained in such circumstances, this Court in the case of Water Wells Limited v Wilson Samuel Jackson 6 held that, the explanation by the party in default, is a preliminary consideration, but the paramount decision, rests on whether or not the defaulting party has disclosed a defence on the merits to the claim. J15 38. The appellants in this appeal have explained that their default in attending court to present their evidence in defence of the matter was on account of not having had notice of the date on which the court proceeded in its absence. Our perusal shows that the record of appeal has no notes of proceedings which could assist resolve that allegation. 39. However, as recounted in detail in the background to the matter, when this matter first came up for trial on 12 th April, 2011, counsel from both sides were in attendance and thus had opportunity to present their respective clients' evidence. The respondent proceeded to call evidence from three witnesses and closed his case. It is the appellants who were not ready to proceed with their evidence in defence and caused the matter to be adjourned to the 27 th of April, 2011. Ground one of the appeal faulting the trial court for not having given the respondent a chance to call witnesses at the trial is not supported by this evidence which is on record. 40. The appellants have further glossed over the fact that adjournment of the matter on 12 th April, 2011 was made in court, in their presence and at their own instance. Hence, no • J16 notice of hearing was required to be issued by the court in those circumstances. The appellants have further not found it fit to explain what happened on 27 th April, 2011, the next scheduled date of hearing their defence and counter-claim. The record is also unhelpful as it is silent in that regard. 41. What the record shows, is that the next sittings of the court, were held a year later on 7 th August, and 20 th September, 2012. The appellants were not in attendance at both those sittings and have not challenged the assertion by counsel for the respondent, that their lawyer had been seen within the court precincts on the latter hearing date but was not in attendance. When the matter was stood down to search for him, he confirmed having since left the court precincts and the town. That, in our view, is not conduct that would excuse the default on the part of the appellants. 42. Nonetheless, even ifwe were to accept the explanation, which we do not, the paramount consideration still remains whether the appellants had raised a meritorious defence to the respondent's claim that he is the registered owner of the property in contention with a Certificate of Title in his name. • ,I ~ Jl7 43. Although the respondent has raised an adverse claim of ownership of the property, the claim is anchored on a letter of offer as against a Certificate of Title holder, with no allegations of fraud whatsoever made against the Certificate of Title holder, in the acquisition of such title. 44. Granted those uncontested facts and on the strength of the decision of this Court in the William Samuel Jackson 6 case to the effect that, when considering setting aside a judgment made in the absence of a party or a default judgment, exercise of the court's discretion is informed by whether or not the defaulting party has raised a defence on the merits worth the court's consideration. For, indeed, in the absence of a defence on the merits there would be no useful purpose served in re-opening a matter which has already been concluded on the basis of there being no defence against the claim. 45. On the particular facts of this case, we find no basis for faulting the trial judge when she resolved the matter premised entirely on S.33 of the Lands and Deeds Registry J18 Act, and the decision of this Court in the case of Anti- Corruption Commission V Barnet Development Corporation Limited 1 ; that short of allegations of fraud in its acquisition, a Certificate of Title is conclusive evidence of ownership of land by the person in whose name it is registered and against whom there can be no adverse claim. Grounds one and two of the appeal fail for those reasons. 46. Lastly, on ground three of the appeal where the appellants fault the trial court for having failed to consider that they had a counter-claim against the respondent. This counter claim appears at pages 19 - 20 of the record of appeal and reads as follows: - "The second defendant and hereby aver that having bonafidely purchased the second defendant in quo. the property repeats paragraphs 4 and 7 above the land is the legal and beneficial owner of interest or claim to the property In the unlikely event it shall be found that a sustainable second defendant avers and the Attorney General should be ordered the plaintiffs the Commissioner interference with the second defendant. the plaintiff has the in issue of Lands to compensate that By reason and quiet utilization is suffering defendant loss and damages. of the property, the said And the second defendant counter claims:- 1. a declaration that stand number 5529 , Ndola. and order it's the bonafide owner of .. ' , . J19 11. the alternative in damages against Attorney General. an order for compensation the Commissioner of Lands and and the 111. an order for costs." 47. Our view of the counter-claim is that the relief sought is substantially directed at the Commissioner of Lands and Attorney General and not at the respondent. Further, the said counter-claim merely maintains the defence raised by the appellants, that they are entitled to the land in issue based on the letter of offer from a Major Godfrey Mulenga. 48. We have already dealt with the contention of ownership which is anchored on a letter of offer when we were considering grounds one and two of the appeal. Our conclusion was that, it does not consist of a defence on the merits against a Certificate of Title holder, where there are no allegations of fraud whatsoever, raised against him in the acquisition of the title. Ground three cannot be sustained for those reasons. 49. All three grounds of appeal having failed, this appeal is accordingly dismissed with costs to th e respondent, to be taxed in default of agreement . ' ... . J20 Appeal dismissed. I. C. MAMBILIMA CHIEF JUSTICE J. K. KABUKA SUPREME COURT JUDGE .................... J. CH ""·········· SUPREME COURT JUDGE