Simpasa & Another v Mwanza (Appeal 28 of 2012) [2016] ZMSC 17 (4 February 2016)

IN THE SUPREMECOURTOF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KANGWA SIMPASA YU HUIZHEN AND APPEAL NO. 28/2012 SCZ/8/21/2012 1ST APPELLANT 2ND APPELLANT LACKSON MWABI MWANZA RESPONDENT CORAM: Mwanamwambwa,D. C. J,Wood,Kaoma,J. J. S. On the 3,d March, 2015 and 4th February, 2016 For the Appellants: For the Respondent: Mr M. J. Katolo of Milner Katolo and Associates Mr K. M. Simbao of Mulungushi Chambers. Mr H. M. Munsanje of H. M Munsanje and Co. and JUDGMENT Mwanamwambwa, D. C. J, delivered the Judgment of the Court. Cases referred to: 1. Milorad Saban and Another V. Gordie Milan (2008) 1 Z. R. 233. 2. Enala Chirwa V. Kachena Financial Limited and 2 others Appeal No. 030/2012 (Unreported). 3. Zambia Revenue Authority V. Tand G Transport (2007) Z. R. 13. 4. Jamas Milling Company Limited V. Amex International PTY Limited (2002) Z. R. 79. Legislation referred to: 1. The Rules ofthe High Court, Cap 27. Orders 2 and 39 2. Halsbury's Laws of England, 3'd Edition, Volume 22 paragraph 1670 at page 791. - J2. This is an appeal, from the Ruling of the High Court, dismissing the Appellants application for review of the Judgment rendered by the High Court. The brief facts of the matter are that the Respondent commenced this action in the High Court for the payment of K70,000,000.00, money he lent to the 1st Appellant and one Chisha Lawrence Simpasa, the 2nd Defendant in the Court below. The two borrowers pledged property number 3664, Olympia, Lusaka as security for the amount they borrowed. The document witnessing the debt on record showed that the title deeds had been surrendered to the Respondent and that in the event of failure to pay back the money, the property would be sold to recover the money. The 1st Appellant and one Chisha Lawrence Simpasa failed to pay the debt. The Respondent sued for the recovery of the money. He took out this action on the 16th of May, 2005. His claim was for the sum of K70, 000,000.00, being money advanced to the 1st Appellant and Chisha Lawrence Simpasa. In the alternative, he claimed an order for possession of the house situated on stand 3664, Lusaka. On the 13th of May, 2011, the trial Judge Judgment m favour of the Respondent and delivered ordered foreclosure of Stand Number 3664, Lusaka. . J3 . On the 2nd of June, 2011, the 151 Appellant filed an application for stay of execution of Judgment and leave to review the Judgment, pursuant to Order 39 of the High Court Rules. The 151 Appellant also applied for joinder of the 2nd Appellant. The Application for stay and joinder were granted, while the application for review was refused by the lower court. In rejecting the application for review, the Judge in the lower court was of the view that the application was made well after the stipulated period of 14 days. Further that in terms of Order 39 Rule (2) of the High Court Rules, after the expiration of fourteen days, an application for review cannot be admitted except by special leave of the Court. He added that this special leave had not been sought. Therefore, he dismissed the application for review for being improperly before the Court. The Appellants now appeal against the decision of the High Court to refuse to review the Judgment. There are seven grounds of appeal. Theyare:- Ground one The learned trial Judge erred in law and fact when he held at page R8 of the Ruling that the application for leave to review the judgment dated 13'h May, 2011 was lodged on 16th June, 2011 when in fact the application was lodged on the 2nd of June, 2011, which fact the learned trial judge acknowledged at page R3 of the Ruling. . J4. Ground two The learned trial Judge erred in law and in fact when he held at page R8of the Ruling that there was no special leave to review sought and accordingly dismissed the application when the learned trial Judge had in fact granted leave to review the judgment by way of an order dated 14 th June, 2011, which operated as special leave to review, following an application filed in the court below by one Chisha Lawrence Simpasa, who was the 2nd Defendant in the matter. Ground three The learned trial Judge erred in law and in fact when he dismissed the application for leave to review his judgment dated 13th May,2011failing to recognise that the application was filed by the 2nd Appellant herein and the said Chisha Lawrence Simpasa and thus failed to address his mind to the Affidavit in support of the application for review deposed to by the said Chisha Lawrence Simpasa. Ground four In the alternative, the learned trial Judge erred in law and fact by failing to exercise his equitable jurisdiction to allow the application for review of the judgment when the application for review was filed in the court below within a reasonable time. Ground five The learned trial Judge erred in law and in fact when he effectively or impliedly held at page R9 of the Ruling that he could not consider matters that occurred after the judgment of the 13th May, 2011 when the evidence on the record clearly showed that the 2nd Appellant herein was issued his . J5 . certificate of title to the property in issue on 25 th January, 2011 and that the parties had agreed to settle the matter ex curia prior to the delivery of the date of the judgment. Ground six The learned trial Judge erred in law and fact in that on R2, the Hon. Judge acknowledged that the action was commenced by way of Writ of Summons and then went on to order foreclosure in a manner of actions commenced by Originating Summons for mortgage actions when in fact no mortgage deed or certificate of title purported to have been held as collateral were exhibited. Ground seven The learned trial Judge erred in law and fact in that having nd joined the 2nd Appellant to the proceedings, the 2 Appellant was then denied an opportunity to be heard. We shall deal with all grounds of appeal at once because most of them are inter-related. Mr Katolo, co-counsel for the Appellant, argued grounds 1,3,4 and 5 as one. He argued that the affidavit in support of the application for Reviewwas deposed to by Chisha Lawrence Simpasa who stated that he was not aware that Judgment had been delivered and that in fact, Stand No. 3664 Lusaka had already been sold and ownership changed. Counsel contended further that having joined the 2nd Appellant on 14th June, 2011, as per order appearing at page - J6 • 124 of the Record, the Court fell into gross error when it held at page 15 lines 9-18, that since the Judgment was rendered on 13th May, 2011, the application for review ought to have been filed not later than fourteen days after the delivery of nd judgment. He submitted that it was impossible for the 2 Appellant to apply for review of the Judgment within fourteen days of the judgment when he was not yet a party to the proceedings. He added that following the joinder of the 2nd Appellant to the action, the Court ought to have set aside the Judgment nd and issued fresh Orders for directions so that the 2 Appellant's interest in the property can be considered. Counsel stated that the court enjoys very wide discretionary powers under Order 39 rule 1, High Court Rules. He cited the case of Milorad Saban and Another V. Gordie Milan (1), to support his argument. It was his argument that there were sufficient grounds to warrant a review of the Judgment. That according to the affidavit in support of the joinder, the 2nd Appellant showed that he bought Stand 3664 Lusaka, where he was residing, at a price of K900 million and that at the time of purchase, he conducted a search at the Ministry of Lands and no encumbrances were found. He added that the court ought to have given the 2nd Appellant an opportunity to be heard regarding his interest in the property in issue. Counsel cited . J7 . the case of Enala Chirwa V. Kachena Financial Limited and 2 others (2) to support his argument. Counsel added that the exceptional circumstances III this case were the fact that the 2nd Appellant was not aware about the proceedings in which judgment was obtained because he was not a party to the proceedings and that he bought the property in question without notice of any encumbrances or defect in title of the vendor. Counsel concluded his argument by urging us to send the matter back to the High Court so that all the interested parties could be heard on the merits. He also invited us to look at Halsbury's Laws of England, 3rd Edition, Volume 22 paragraph 1670 at page 791. In ground two, Mr Katolo submitted that the lower court granted an order for leave to review Judgment and that there was no objection to the grant of the said order by the Respondent's advocates. He added that having granted the said order for review of the judgment, the Court ought to have proceeded to review the judgment instead of raising lssues about the time when the application was filed and which issues ought to have been raised at the time of application for leave. It was his argument that having granted leave for review of judgment, the court assumed jurisdiction to review the judgment. That it is the grant of leave that conferred jurisdiction on the Court. He cited the case of Zambia - J8 - Revenue Authority V. T and G Transport (3) to support his argument. Counsel went further to state that the court fell into gross error when it held that the application for review was improperly before the court because no special leave had been sought when there was already an order granting leave to review and which order had neither been set aside nor vacated by the Court. He added that the application for review was properly before the Court and that the Court had jurisdiction to proceed with the review. Co-counsel for the Appellants, Mr Simbao submitted that the application filed on 2nd June, 2011, which is on page 101 of the Record of Appeal, was summons for leave. That the omission of the word 'special' could not be fatal as under Order 39 of the High Court Rules, one could only file for review as of right within 14 days and by leave thereafter. That having erroneously found that no leave for review was sought, the learned trial judge failed to address his mind to the Affidavit in support of the application for review deposed by Chisha Lawrence Simpasa. In ground five and seven, Mr Simbao argued that the learned trial Judge erred in law and fact when he held that he could not consider matters that occurred after the judgment of 13th May, 2011. That this issue should not have been considered as obiter because it was the hinge upon which the . J9. Appellant's case swung. It was counsel's argument that having joined the 2nd Appellant to the proceedings, the Judge was duty bound to hear the 2nd Appellant. Counsel added that having refused to hear the 2nd Appellant, the trial Judge left the 2nd Appellant in a very vulnerable position. In Ground SlX, Mr Simbao submitted that according to the Writ of Summons, five reliefs were sought. That the first was a claim for the debt and the second was an alternative claim for possession. He stated that it was strange that the trial Judge gave a claim which was canvassed in the alternative and left out the principle claim for the debt. Counsel for the Respondent argued grounds 1, 2 and 3 as one. He submitted that although they may have been errors by the trial judge in arriving at his decision that is subject of this appeal, the errors were not fatal but very sound at law. He stated that it is of no consequence whether the th application for review was filed on the 2nd June, 2011 or 16 June, 2011 as both days are way beyond the requisite fourteen days. That from 13th May, 2011 to 2nd June, 2011 or 16th June, 2011 is more than 14 days. He cited Order 2 rule 1 of the High Court Rules, Cap 27, to support his argument. Counsel added that the court below gave leave to review to Chisha Lawrence Simpasa, the 2nd Defendant in the Court below and not the 1st and 2nd Appellants. That in short . J10 . Chisha Lawrence Simpasa, the 2nd Defendant in this matter did not appeal against the Ruling on review. We have looked at the evidence on record and considered the authorities and submissions filed by both parties. Order 39 Rules 1 and 2, Rules of the High Court, Cap 27 of the Laws of Zambia provides as follows: "1. Any Judge may, upon such grounds as he shall consider sufficient, review any judgment or decision given by him (except where either party shall have obtained leave to appeal, and such appeal is not withdrawn), and, upon such review, it shall be lawful for him to open and rehear the case wholly or in part, and to take fresh evidence, and to reverse, vary or confirm his previous judgment or decision: Provided that where the judge who was seized of the matter has since died or ceased to have jurisdiction for any reason, another judge may review the matter. 2. Any application for review of any judgment or decision must be made not later than fourteen days after such judgment or decision. After the expiration of fourteen days, an application for review shall not be admitted, except by special leave of the Judge on such terms as seem just." From the above rules, it is clear that there have to be sufficient grounds for an application for review to be granted. Further, the application for review must be made within 14 days and after 14 days, an application can only be made with special leave of the Court. . J11 . Further, Order 2 rule 1, High Court Rules, Cap 27 provides that- "1. Where, by any section of the Act, or any order or rule of court, or any special order, or the course of the Court, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding, and such time is not limited by hours, the following rules shall apply: (a) The limited time shall not include the day of the date or of the happening of the event, but shall commence at the beginning of the day next following that day. (b) The act or proceeding must be done or taken at latest on the last day of the limited time. (c) When the limited time is less than six days, the following days shall not be reckoned as part of the time, namely, Saturdays, Sundays and any public holidays. (d) When the time expires on one of those days, the act or proceeding shall be considered as done or taken in due time, if it is done or taken on the next day afterwards, not being one of those days." In the present case, having regard to Order 2, Rule 1 (cl of the High Court Rules, the 14 days within which an application for review should have been made included Saturdays and Sundays. From 13th May 2011, when the Ruling was delivered to 2nd June 2011, when the application . J12 - for review was lodged, it was 19 days. Therefore, special leave was required for review. The Appellants argued that it was impossible for the 2 nd Appellant to have applied for leave within 14 days because he was not yet a party. We do not agree with this argument because Order 39 rule 2, of the High Court Rules makes provision for special leave. Therefore, if the 2nd Appellant was out of the 14 days period within which he ought to have made the application, he could have applied for special leave to review the judgment. The Appellants also argued that special leave was granted by order appearing on page 124 of the record of appeal. We do not agree with this contention. We say so because the order referred to was responding to the application for leave to review. The order allowed the Appellants to file the application for review. Once filed, the application is what the trial Judge considered to see if the application for review should be allowed or not. The trial judge was of the view that the application was out of time and as obiter, that the facts that came into existence after delivery of judgment cannot be considered in review. In our Vlew, time factor is not the mam lssue in this matter. The main issue is whether review was available. This brings us to Jamas Milling Company Limited v Amex International Limited (4) It dealt with review under Order - J13 • 39, Rule 2 of the High Court Rules. In that case, we said as follows:- "For review under Order 39, Rule 2 of the High Court Rules to be available, the party seeking it must show that he has discovered fresh material evidence, which would have material effect upon the decision of the Court and has been discovered since the decision but could not, with reasonable diligence, have been discovered before." We note from the record that this matter was already in Court, when the 1st Appellant and Chisha Lawrence Simpasa sold the property in dispute to the 2nd Appellant. The two deliberately concealed the sale of the property from the High Court. The concealment borders on fraud. We hold that there was no fresh relevant evidence discovered after the Judgment of 13th May, 2011, because the sale of the property in dispute nd Appellants to the 2nd Appellant, was known by the 1st and 2 and their Counsel, at the hearing. Accordingly, review was not available in this case. Therefore, the learned trial Judge cannot be faulted for refusing review. We do not accept the argument by Mr. Katolo that when the 2nd Appellant conducted a search on Stand 3664, Lusaka, there was no incumbrance on it. The argument is at variance with the evidence on record. The truth is that there was a caveat lodged on the property by the Respondent, as mortgagee. For some time, that caveat prevented registration of the assignment of the property to the 2nd Appellant. And - J14 - the caveat was the subject of correspondence between Counsel for the 2nd Appellant and the Chief Registrar of Lands and between Counsel for the Respondent and the Chief Registrar of Lands and Deeds. The first of the letters, is at page 119 of the record of appeal. It reads as follows:- "MS1/SM/08 2nd March, 2011 The Chief Registrar Lands & Deeds Registry Ministry of Lands LUSAKA Dear Sir/Madam, RE: LUS/3664 - CAVEAT ENTERED BY LACKSON M. MWANZA By entry NO.3 on the Lands Register pertaining to this property, our client entered a Caveat on 23'" December 2004. Inexplicably, No.4 on 16th August 2005. the Caveat was removed by your office by entry Could we understand why? Our client subsequently sued and obtained an Ex-parte Order of Attachment which please find enclosed herewith. Judgment on the main claim is due to be rendered any time by Dr. Justice Matibini. We now understand that attempt to register the transaction has been made. the property has been sold and an This now demands that you do not proceed to register interest until of resolved; also until the Court case is determined. the withdrawal the matter of the new is the Caveat Yours faithfully, MAMBWE, SIWILA & PARTNERS Per: DATED Cc: Silas Mambwe Mr. L. M. Mwanza, LUSAKA" OFFICIAL STAMP 03 MAR 2011 . J15 - The reply to the letter 1S at page 120. It reads as follows:- "REPUBLIC OF ZAMBIA MINISTRY OF LANDS OFFICE OF THE CHIEF REGISTRAR PO BOX 30069 LUSAKA 27'h April 2011 Mambwe Siwila & Partners 7'" Floor, Godfrey House, Kabelenga /Longolongo Roads POBox 32421 LUSAKA Dear Sir RE: LUS/3664 - CAVEAT ENTERED BY LACKSON M. MWANZA The captioned refers and your letter of 2 nd March. Our advice in protecting your client's interest order dated 4th September 2009, purposes of registration register is to have the for at Ministry of Lands and thereafter the same with the Lands and Deeds Registry. renewed by the Court Yours faithfully, Mrs. J. Shoko Chilombo ACTING CHIEF REGISTRAR" On 15th March 2011, there was a letter from the 2 nd Appellant's Advocates to the Chief Registrar of Lands. It is at page 112. It reads as follows:- "MULUNGUSHICHAMBERS ADVOCATES & COMMISSIONERS PERMANENT HOUSE CAIRO ROAD PO BOX 36639 LUSAKA FOR OATH - J19 - H~' A. M. SUPREME COURT JUDGE ~.~ ..?C.e .. C. KAOMA SUPREME COURT JUDGE