This appeal is from a Judgment of the High Court, delivered on 16 October 2013. The Judgment followed an action by the Respondent commenced by way of a specially endorsed writ with a supporting statement of claim. The dispute related to the ownership of Stand No. 27269, Lusaka, also known as house number 1 of plot 145/110a Musonda Ngosa Road, Villa Elizabeth, Lusaka which was offered to the Respondent for him to purchase as part payment of his terminal benefits. According to the Respondent, after he purchased the house, he went on to obtain Certificate to Title number 10651. He alleged that from 1st October 1997 to the date, the Appellant had been occupying the house without paying rentals. That despite several demands, the Appellant had refused to vacate the house claiming that he was the sitting tenant and, therefore, entitled to purchase the house. The High Court found that the Respondent was the rightful owner of the house and ordered that it could only order the cancellation of the Certificate of Title if there was proof that it had been obtained fraudulently. Further, with regards to the Respondent’s claim for mesne profits, the Court declined to award the Respondent’s claim of K4, 250, 000.00 per month as there was no documentary proof to support the claim and matter referred the matter to the Deputy Registrar for assessment. Being dissatisfied with the trial court, the Appellant appealed advancing among other grounds that:
(1) the learned trial Judge erred when she proceeded to base or found her judgment on documents which were neither produced in court nor their contents proved in evidence to the requisite standard of proof;
(2) that the trial Court erred in having granted reliefs in favour of the Respondent, including the relief of mesne profits, which could only have been warranted if the Appellant had been in a Tenant and Landlord relationship with the Respondent.
Held:
1. The procedural rules relating to documentary evidence in civil matters are different from those applicable to criminal matters. This is essentially because the standard of proof in criminal matters is proof beyond reasonable doubt while proof in civil matters is on a balance of probabilities. For this reason, the rules relating to documentary evidence in criminal matters require that each document must be specifically identified and produced by the relevant witness during trial before its contents can be publicized and relied upon to support a party’s case.
2. It is trite law that, there is no discovery and inspection of documents and the filing of bundles of documents in criminal matters, unlike the position in civil matters where civil procedure rules provide for parties to have access to all documents in possession of their opponent and raise any objections that they may have to such documents.
3. Discovery of documents enables a party to see all material documents in the possession of his or her opponent and if need be, to take copies of the documents.
4. An objection to a document must be made timely to allow the opposing party to respond and, if possible, to make any relevant application. The objection cannot be validly made after the trial of the matter has closed. In the absence of an objection the Court is not precluded from taking into account documents contained in a bundle.
5. A Certificate of Title is conclusive evidence of ownership of the property to which it relates. It can only be nullified if fraud in acquisition is proved.
6. An allegation of fraud must not only be clearly and distinctly alleged but it must also be clearly and distinctly proved by evidence. The standard of proving an allegation of fraud is higher than the civil law standard of proof.
7. In an action for mesne profits, a landlord may recover the damages which he or she has suffered through being out of possession of the land.
