Rotor Moulder Enterprises Limited v Stanley Jordan and Ors (Appeal No. 211/2022) [2024] ZMCA 346 (31 December 2024)

IN THE COURT OF APPEAL OF Z~MBIA HOLDEN AT LUSAKA (Civil Jurisdiction) /ftY· . - "ft .:~ / 1.··~ · ~ • · I • • , ( ' _.? ~ ~ _ .... Appeal No. 211/2022 BETWEEN: . 3 1 DEC 2024 L... . CIVIL REGi Ti('y' 1 ",./ __ _,. .. / - / r ROTOR MOULDER ENTERP (ls __ .. '.::~ l i: 1 •.-.-·· APPELLANT AND STANLEY JORDAN JOSEPH JOHN MARTIN JORDAN THE ATTORNEY GENERAL THE REGISTRAR OF LANDS THE COMMISSIONER OF LANDS DISCOVER DECOR LIMITED LAMASAT INTERNATIONAL LIMITED 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT 1 ST INTERESTED PARTY 2ND INTERESTED PARTY CORAM: Makungu, Muzenga and Chembe, llA On 18th lune 2024 and 31st December 2024 For the Appellant: Mrs. M. Mwansa-AMW & Company Legal Practitioners For the p t & 2nd Respondent: No appearance For the 3rd , 4th & 5th Respondent: Mrs. N. Chango & Ms. A. Chisanga Attorney General's Chambers For the 1st & 2nd Interested Party: Mr. D. Mushenya-Wright Chambers JUDGMENT MUZENGA JA, delivered the Judgment of the Court. R3 1.0 INTRODUCTION 1.1 This is an appeal against a Ruling of Musona, J, dated 26th July 2022, in which he ordered the issuance of a writ of possession, affecting two pieces of land owned by the appellant. 2.0 BACKGROUND 2.1 The background to this appeal is that the 1st and 2nd respondents, by virtue of Certificate of Title No. 54925, issued on 10th January 1984, were registered owners of Stand No. 9777 situate in Lusaka along Kafue Road. In the year 1996, the 3rd , 4th and 5th respondents re-surveyed, re-planned and subdivided Stand No. 9777 aforementioned and created Stands 17700, 17701, 17703, 19034, 20982, 20984 and 21017. 2.2 Embittered with the conduct of the 3rd to 5th respondents, the 1st and 2nd respondents commenced an action against them which culminated in a judgment dated 25th January 2008 delivered by Japhet A. Banda, J. By the said judgment, the created Stands No. 17700, 17701, 17702, 17703, 19034, 20982, 20983, 20984 and 21017 were declared unlawful and cancelled. 2.3 On 10th November 2010, the appellant and the respondents entered into a Consent Order in which it was ordered and directed that the appellant R4 be joined to the proceedings as an intervenor and that judgment dated 26th January 2008 to the extent that it ordered the cancellation of certificates of titles in respect of Stand No. 20983 and 20984 in the name of the intervenor (the now appellant) be set aside. It was further ordered that Stand Numbers 20983 and 20984 Lusaka be reinstated to the appellant. 2.4 It was further adjudged that the 1st and 2nd respondents be given new pieces of land by the 5th respondent in exchange for Stand Numbers 20983 and 20984, which pieces of land be more or less equivalent in size to the aforesaid stands and located in an area of similar prime commercial position. The 3rd to 5th respondents abdicated their obligation under the aforementioned Consent Order. 2.5 The p t and 2nd respondent thus approached the lower court seeking a writ of possession to enforce the judgment dated 25th January 2008, for properties including the ones owned by the appellant, namely 20893 and 20984 (now 36331). 3.0 DECISION OF THE COURT BELOW 3.1 The learned trial court found that all properties subject of the proceedings belonged to the 1st and 2nd respondents. The lower court RS was satisfied that a Consent Order was executed in which the 3rd to 5th respondents were to give alternative land to the 1st and 2nd respondents and that the 3rd to 5th respondents had back peddled, declined, refused or neglected to give the 1st and 2nd respondents alternative plots as agreed in the consent. 3.2 The lower court thus held that it was logical for the 1st and 2nd respondents to keep their plots. That the 1st and 2nd respondents had proved their case and he granted them leave to issue writs of possession including the two properties held or owned by the appellant. 4.0 GROUNDS OF APPEAL 4.1 Disconsolate with the Ruling of the lower court, the appellant appeals to this Court on the following grounds: 1. The learned judge in the court below misdirected himself in law and in fact when he found that the 1st and 2nd respondents own the properties known as Stand 20983 and 20984 Lusaka ("the Properties") and were entitled to keep them thereby ignoring the clear terms of the Consent Order dated 10th November 2010. 2. The learned judge in the court below erred in law and in fact when he essentially set aside the Consent Order of 10th November 2010 in the proceedings before him contrary to the law and the evidence on the record. R6 3. The learned judge in the court below erred in law and in fact when he granted the 1st and 2nd respondents application for leave to issue a writ of possession when the said application was based on a judgment of 25th January 2008 which judgment had been set aside by a later Consent Judgment dated 10th November 2010. 4. The learned judge in the court below erred in law and in fact when he granted the 1st and 2nd respondents application for leave to issue a writ of possession in the absence of an underlying action for possession of the properties and contrary to the law. 5.0 APPELLANT'S ARGUMENTS 5.1 The appellant relied on its heads of argument filed on 16th September, 2022. In arguing the first three grounds together, Counsel submitted that their position in this appeal was that the learned High Court Judge set aside the Consent Judgment by his Ruling when he had no power to do so. It was submitted that it was clear from the Consent Judgment that the properties were unconditionally reinstated to the appellants. Counsel argued that the Consent Judgment took effect and title to the properties was issued to the appellants. None of the parties challenged the order and as such, the appellants remained the only owners of the properties. R7 5.2 Counsel referred to the learned author of Zambian Civil Procedure Commentary and Cases, Vol 2 where he stated that: "It is fairly common for parties to come to an agreement about the outcome of an interim application or the outcome of the entire proceedings before the court is called upon to decide the matter. Thus, parties are at liberty to apply for a consent judgment at any stage of an action. In that event, the parties are at liberty to agree the terms upon which the proceedings will be concluded, and to present such terms to the court, so that the court may draw up an order or enter a judgment accordingly. Therefore, it is trite that consent orders are prepared by the parties setting out the terms and are brought to court only for approval or acknowledgment. A consent order is complete and final when endorsed by the court." 5.3 Counsel further referred the Court to the learned authors of Halsbury's Laws of England, Vol 11, 5th Edition, paragraph 1172 where it is stated that: "A judgment which would be final if it resulted from judicial decision after a contest is not prevented from being so by the fact that it was obtained by consent or by default provided the party against who, it is set up was under no liability ... " R8 5.4 Learned Counsel relied on the cases of Charles Kabwita v. NFC Africa Mining Plc1 and Mulenga & Another v. Chainama Hotels Limited & Others2 on this subject. 5.5 It was argued that having shown the effect of the consent judgment, the parties were bound by what they agreed and the items could not be changed unless they applied to set it aside or took another step to enforce their rights under the consent judgment. Counsel referred to Ituna Partners v. Zambian Open University Limited 3 where the Supreme Court elucidated the meaning of the phrase' functus officio.' She submitted that the court being functus officio after the consent judgment, the same court could not review or reopen the consent judgment in the same proceedings. 5.6 Counsel submitted that it is trite law that a consent order could not be set aside in the manner the court below did. If dissatisfied with a consent order, it was for that party to take steps to challenge the consent order in the correct manner by commencing a fresh action. To support this argument, the case of Zambia Seed Company v. Chartered International (PVT) Limited4 and the learned author of Zambian Civil Procedure Commentary and Cases were referred to. 5. 7 It was counsel's submission that the p t and 2nd respondents in their R9 affidavit in reply at pages 61 - 63 of the Record of Appeal continued to rely on the 2008 judgment to argue that the certificate of title in respect of Stand 9777 Lusaka was never cancelled and was valid. Had the learned Judge in the court below considered the affidavit, he would have seen that the argument was flawed as the said certificate of title was cancelled to the extent provided for in the consent judgment. It was argued that the only way the consent judgment could be set aside was by commencement of a fresh action and not through an application to issue a writ of possession over a property that did not belong to them. 5.8 Counsel submitted that by re-opening a subject that was already determined, the learned Judge offended a fundamental principle of law that there is only one High Court and one High Court Judge cannot be seen to overrule another. She relied on the cases of Rahim Obaid v. The People, Nahedim Quasmi v The People5 for this proposition. It was argued that what transpired in the court below was a clear cut case of rendering conflicting judgments as the appellants had been given the properties in one Judge and the same properties taken away in the Ruling of another Judge. Counsel's argument was that it was even RlO stranger that the Judge purported to enforce the 2008 judgment in 2022, 14 years later despite the same being statute barred as per Section 2(4) of the Limitation Act 1939. Counsel contended that by purporting to enforce the 2008 judgment in the manner the High Court Judge did, he violated a sacrosanct principle of the law without having the requisite jurisdiction. 5.9 On the question of jurisdiction, Counsel submitted that jurisdiction is everything as has been espoused in Antonio Ventriglia and Another v. Finsbury Investments Limited6 and Guardall Security Group Limited v. Reinford Kabwe. 7 5.10 In ground 4, Counsel argued that the writ of possession was granted in the absence of an order for possession of the properties being granted by the court. She referred to the case of Hongling Xing Xing Building Company Limited v. Zam Capital Enterprises Limited8 where it was held that: "The question or issue that falls to be determined in this application is simply this: whether or not I should grant I leave to the defendant to issue a writ of possession. must state at once that in my opinion the grant of leave to issue a writ of possession presupposes in the first place the existence of a judgment or order for the giving of possession of land. Thus, the enforcement of a judgment Rll or order to grant possession of land through a writ of possession, must be preceded and complimented by leave of the Court to issue the writ of possession." 5.11 Further reference was made to Order 45 Rule 3 of the Rules of the Supreme Court of England 1999 Edition which shows that a writ of possession can only be employed as a means of enforcement in matters wherein a judgment giving possession to land subsists. 5.12 It was therefore submitted that from the record, there was no order granting possession of the properties to the 1st and 2nd respondents for them to have been entitled to the relief sought. 6.0 1 ST AND 2ND RESPONDENT'S ARGUMENTS 6.1 In responding to the first three grounds of appeal, learned Counsel for the 1st and 2nd respondents referred the Court to Order 45 Rule 10 of the RSC which provides that: "A party entitled under any judgment or order to any relief subject to the fulfilment of any condition who fails to fulfill that condition is deemed to have abandoned the benefit of the judgment or order, and unless the Court otherwise directs, any other person interested may take any proceedings which either are warranted by the judgment or order or might have taken if the judgment or order had not been given or made." R12 6.2 Counsel submitted that in pursuance of Order 45 Rule 10 above, the appellant as well as the 3rd to 5th respondents, being the parties entitled under Consent Order dated 10th November 2010 subject to the fulfilment of a condition which in this case was giving the 1st and 2nd respondents new pieces of land in exchange for Stands No. 20983 and 20984 failed to fulfil that condition and were deemed to have abandoned the benefit of the judgment or order. That the ist and 2nd respondents had continued to suffer great injustice as they had for many years been deprived of properties that they legally owned. 6.3 It was counsel's further argument that they had not at any point applied to have the consent order set aside as they were not alleging fraud, misrepresentation or mistake to warrant commencement of a fresh action as espoused in the Zambia Seed Company Limited case. 6.4 Counsel contended that the p t and 2nd respondents were entitled to enjoy the fruits of the judgment dated 25th January, 2008 and Ruling dated 26th July, 2022. That the execution of the judgment was not limited to Stands No. 20983 and 29084 but also encompassed other various pieces of land illegally created on Stand No. 9777, a property of the ist and 2nd respondents. R13 6.5 In response to the fourth ground, counsel submitted that in line with Order 45 Rule 3(1) to (3) of the RSC, Judge Musona was clothed with the power to grant leave for the writ of possession to be issued in order to enforce the judgments handed down on 8th January, 2008 and 1st August, 2019. 6.6 It was Counsel's further argument that by Judgment dated 25th January 2008 at page J4, all certificates of title created on Stand No. 9777, Lusaka by the 2nd and 3rd respondents were cancelled and that their action of removing the caveat was illegal, unlawful, with no effect as it was contrary to Sections 33 and 35 of the Lands Act. 6. 7 He contended that in the premises, whoever, including the ist and 2nd interested parties who acquired land and title to that land as a result of the unlawful acts of the 3rd to 5th respondents did not obtain good title. 7.0 1sr AND 2ND INTERESTED PARTIES' ARGUMENTS 7 .1 The gist of the interested parties' argument was that the court below misdirected itself in law and fact when it granted the 1st and 2nd respondents leave to issue a writ of possession to enforce the judgment delivered on 28th January, 2008 over Stand 20982 Kafue Road Lusaka. R14 7.2 Counsel referred the Court to Order 45 Rule 3(1) of the Rules of the Supreme Court and submitted that for one to have recourse to this provision, it ought to have been precipitated by an order or a judgment granting possession to the land. He argued that there was no judgment or order granting possession of any land to the pt and 2nd respondents and therefore they were not entitled to apply for leave to issue a writ of possession. 7.3 It is argued that there was further no evidence of notice of proceedings served on the interested parties. Counsel contended that these irregularities called into question the jurisdiction of the court in entertaining the application for leave to issue a writ of possession. He called into aid the case of Antonio Ventriglia v. Finsbury Investments Limited in support of this argument. 7.4 In stressing the importance of serving the notice of proceedings, counsel referred to a number of authorities including the case of LC & DK Limited (In Receivership) Angel Poultry Ltd v. Lovemore Chikuni Chinyama. 9 It was thus contended that there being no notice of proceedings served on the interested parties, they could not be liable RlS on the judgment dated 25th January 2008 or the ruling delivered on 26th July 2022. 7.5 Learned Counsel further argued that the p t and 2nd respondents obtained their judgment in 2008 and slept on their rights for twelve years without objecting to the developments made by the 1st and 2nd interested parties on the Stand No. 20982 or at the very least, obtaining an injunction against them. He placed reliance on the case of Duke of Leeds v. Earl of Amherst10 for this submission. 7.6 In relying on the case of Enesi Banda v. Abigail Mwanza11 Counsel argued that the interested parties were innocent purchasers for value without notice. 7.7 He prayed that the appeal be allowed. 8.0 THE HEARING 8.1 At the hearing of the appeal, learned counsel for the appellant, Mrs. Mwansa placed full reliance on the documents filed. Learned Counsel for the 1st and 2nd respondents had filed a notice of non-attendance and was therefore not present. Mrs. N. Chango, Counsel for the 3rd , 4th and 5th respondents informed the Court that they would leave it to the Court R16 as they did not file any arguments. Counsel for the 1st and 2nd interested parties, Mr. Mushenya, placed reliance on the documents filed. 9.0 DECISION OF THE COURT 9.1 We have earnestly considered the record of appeal together with the accompanying arguments. We shall consider all the grounds of appeal together as they are related. The core issues in this appeal are whether the court below was entitled to enforce an earlier judgment which was varied by a subsequent Consent Order, and whether a writ of possession can issue without proof of service of proceedings on a person in possession of the subject property. 9.2 It is a well-settled principle of law that consent orders are only set aside by commencing a fresh action. To this effect, Order 13/9/16 of the Rules of the Supreme Court (RSC) provides as follows: "It would appear that a judgment by consent cannot, after it has been passed and entered, be set aside under this rule on the ground that the consent was given under a mistake but it can be set aside in a fresh action for the purpose on grounds that would suffice to set aside a contract." 9.3 This principle was echoed in the Zambia Seed Company case supra where it was held that: R17 "By law the only way to challenge a judgment by consent would be to start an action specifically to challenge the consent judgment." 9.4 It is clear from the facts on the record that the parties by way of consent set aside the judgment dated 25th January 2008 to the extent that it ordered cancellation of the Certificates of Title in respect of Stand Numbers 20983 and 20984 and reverted the same to the intervenor, the now appellant. Pursuant to the said consent judgment, the 5th respondent was to give the 1st and 2nd respondents alternative pieces of land in exchange for Stand Numbers 20983 and 20984. 9.5 The 5th respondent however failed or neglected to give the p t and 2nd respondents the alternative plots and the learned Judge in his Ruling dated 26th July 2022 reverted the plots to the 1st and 2nd respondents. 9.6 As we have already alluded to, the law regarding challenging of consent judgments is clear, the proper course of action for the p t and 2nd respondents was to commence a fresh action to set aside the consent judgment in the light of the circumstances. 9.7 This brings us to the second issue in contention. Order 45 rule 3 of the RSC provides that: "{1} Subject to the provisions of these rules, a judgment R18 or order for the giving of possession of land may be enforced by one or more of the following means, that is to say- (a) writ of possession; (b) (c) ... ; .. . (2) A writ of possession to enforce a judgment or order for the giving of possession of any land shall not be issued without the leave of the Court except where the judgment or order was given or made in a mortgage action to which Order 88 applies. (3) Such leave shall not be granted unless it is shown - (a) that every person in actual possession of the whole or any part of the land has received such notice of the proceedings as appears to the Court sufficient to enable him to apply to the Court for any relief to which he may be entitled ... " 9.8 A writ of possession is one of the various modes in which a judgment or order for the giving of possession of land may be enforced as provided for under Order 45 rule 3 supra. This, in itself, entails that before a writ of possession can be issued, there ought to be an order or judgment giving possession of land. 9.9 It is imperative to note that a writ of possession enforcing a judgment or an order for possession or recovery of land cannot be issued R19 without leave of court as we earlier postulated in the case of LC and DK Limited & Angel Poultry Limited case supra that: "It is trite law that leave to issue a writ of possession ought to be sought in cases which seek to enforce a judgment for possession of land." 9.10 What can be further gleaned from Order 45 rule 3 is that leave to issue a writ of possession cannot be granted unless it is shown that every person in actual possession of the whole or any part of the land has received such notice of the proceedings as appears to the Court sufficient to enable him or her apply to the Court for any relief to which he may be entitled. 9.11 In casu, the learned judge went ahead and granted leave to issue a writ of possession in respect of Stand No. 9777 which encompasses the cancelled Stands numbered 17701, 17703, 19034 (now 36322) 20982 (now 36330) 20983, 20984 (now 36331) and 21017. 9.12 The p t interested party's argument is that it bought Stand No. 20982 Kafue Road Lusaka from the 2nd interested party free from any encumbrances in the year 2013, when it was partially developed. The 1st interested party contends that it has been in occupation of the said property since the year 2013 and none of the interested parties had R20 been served with court process or the 2008 judgment which flowed from the process, neither had they been served with the notice of proceedings relating to the application for leave to issue a writ of possession. 9.13 The p t interested party, as the person in actual possession of the property was therefore denied an opportunity to seek any remedy which it may have been entitled to from the court. 9.14 The learned trial judge wrongly pronounced the p t and 2nd respondents as owners of the properties and went further to grant them leave to issue a writ of possession. The interested parties not having been served with the notice of proceedings of the application for leave to issue a writ of possession, we come to the conclusion that the writ of possession was marred with irregularities and therefore irregular and liable to be set aside. 9.15 In the circumstances, we find merit in all the grounds of appeal and the arguments by the intervenors, to the extent discussed in this judgment. 10.0 CONCLUSION 10.1 Having found merit in the appeal, we allow it. The writ of R21 possession issued by the lower court is hereby set aside. 10.2 We award costs of this appeal to the appellant against the pt and 2nd respondents, to be taxed in default of agreement. The intervening parties will bear their own costs of this appeal. .... ....... ~ "-: .......... ~ ... . . C. K. MAKUNGU COURT OF APPEAL JUDGE ..... s::a;. ............ . K. MUZENGA &:adie ........ ......... .. ...... .. ...... .... ... Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE