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NEW PLAST INDUSTRIES v THE COMMISSIONER OF LANDS AND THE ATTORNEY-GENERAL
Sakala, Ag D.C.J., Chirwa and Lewanika J.J.S.
8th February, and 10th May, 2001
(SCZ Judgment No. 8 of 2001)
Civil Procedure Commencement of proceedings Mode to be determined by the relevant statute and not reliefs.
Civil Procedure White Book and local statute Priority of latter.
Civil Procedure Hearing Oral or written evidence Whether either will suffice.
This is an appeal against a ruling of the High Court on a preliminary issue. Namely, that the Lands and Deeds Registry Act provides for a procedure under section 97 for appealing against a decision of the Lands and Deeds Registry. After the ruling of the court dismissing the whole action on a preliminary issue, the appellant applied to the court to review its judgment pursuant to order 39 (1) of the High Court Rules before the summons could be uplifted and without hearing the appellant. The court dismissed the application on the ground that the application for Judicial Review was irregular.
(i) It is not entirely correct that the mode of commencement of any action largely depends on the reliefs sought. The correct position is that the mode of commencement of any action is generally provided by the relevant statute.
(ii) The English White Book could only be resorted to if the Act was silent or not fully comprehensive.
(ii) The content of what amounts to the hearing of the parties in any proceedings can take either the form of oral or written evidence. Where the evidence in support of an application is by way of affidavit, the deponent cannot be heard to say that he was denied the right of a hearing simply because he had not adduced oral evidence.
Legislation referred to:
1. High Court Act, Cap. 27 s. 10.
2. Lands and Deeds Registry Act Cap. 185 ss. 87 and 89.
Case referred to:
Chikuta v Chipata Rural Council (1974) Z.R. 241.
R.M. Simeza of Messrs Simeza and Sangwa Associates, for the appellant.
J .Jalasi, State advocate, for the respondent.
SAKALA, A.G. D.C.J., delivered the Judgment of the Court.
This is an appeal against a ruling of the High Court on a preliminary issue. It is also an appeal against the refusal by the High Court to review its ruling on the same preliminary issue. The short facts are that the appellant had obtained leave to apply for Judicial Review against a decision of the Acting Chief Registrar of Lands and Deeds Registry dated 14th March, 2000. In her decision, the Acting Chief Registry had cancelled entries numbered 3,4,5, and 6 in the Lands and Deeds Register in respect of property No. LUS/2758/A. She further ordered that the title deed in the said property should revert to the first respondent and that the appellant should surrender the certificate of title previously issued to the appellant for cancellation.
The action for Judicial Review was commenced against four respondents. Namely; Sandra Nayame, first respondent, P.S. Kinnear, second respondent (sued in her personal capacity and as the Acting Chief Registrar of Lands and Deeds), the Commissioner of Lands , third respondent and the Attorney-General as fourth respondent. The notice and the memorandum of appeal only cited the Commissioner of Lands and the Attorney-General as first and second respondents respectively. In the action, the appellant sought orders of certiorari, mandamus, declaration and damages.
The brief facts supporting the application for leave to apply for Judicial Review were that the appellant entered into a lease agreement dated 16th July, 1996, with one Joselyn Nayame in respect of her premises at Plot No. 2758A, Kamwala, Lusaka, for a period of three years at an agreed rental of K600,000 from 1st January, 1997. The said Joselyn Nayame, not party to the proceedings before the trial court, by an assignment in writing dated 20th April, 1999, transferred all the unexhausted improvements in the land in extent 102 square meters of S/DA of plot 2785 Kamwala, for a consideration of K21,600,000.00. This transaction was duly registered in the Lands and Deeds Register on 20th April, 1999. Consequent upon this assignment, a certificate of title No. 2904 of the same date was issued to the appellant. On 14th March, 2000, the Acting Chief Registrar of Lands and Deeds Registry, the second respondent in the application at trial , advised the appellant in writing that she had taken steps to cancel entries numbered 3, 4, 5 and 6, in the Lands and Deeds Register in respect of S/DA of Plot No. 2758A, Kamwala, Lusaka on an allegation by Sandra Nayame, the first respondent in the application, that the transfer of the said property from the first respondent, Sandra Nayame, to Joselyn Nayame (not a party in the proceedings) was fraudulently procured and that the appellant should surrender back the title deed to be reverted to the first respondent, Sandra Nayame. On 22nd March, 2000, the advocates for the appellant wrote the Acting Chief Registrar to reverse the cancellations which were made by the Commissioner of Lands. The Acting Chief Registrar declined and advised that the appellant should seek recourse in a court of law.
We have deliberately delved into the facts of this matter to highlight the issues involved in the main action to ascertain whether, on the facts as set out, the preliminary issue was properly taken. Before the hearing of the application on the substantive issues, counsel for the second, third and fourth respondents raised a preliminary issue, namely, the Lands and Deeds Registry Act provided for a procedure under Section 87 for appealing against a decision of the Chief Registrar. The gist of the submission before the High Court was that the commencement of an action by way of Judicial Review was improper and did not comply with the procedure provided under the Lands and Deeds Registry Act. Suffice it to mention that Mr Simeza, who also appeared for the appellant at the High Court, vehemently opposed the preliminary issue on ground that Section 87 of the Lands and Deeds Registry Act did not provide for procedure on appeal. The learned trial Judge considered the submissions on the preliminary issue. After pursuing section 89 of the Lands and Deeds Registry Act Cap185, the learned trial Judge held that the procedure for appeal to court in matters involving decisions of the Registrar of the lands and Deeds Registry is adequately provided for under the Act and that Section 87 of the Act was specific. It provided that any aggrieved party may appeal to the High Court following the procedure in appeals from the Subordinate Court to the High Court. The court found that Judicial Review was a mode of commencing an action, while the procedure provided under the Lands and Deeds Registry Act is a mode of appeal. The Court concluded that the appellant had adopted an erroneous and irregular procedure. The preliminary issue was upheld. The whole action was dismissed with costs.
After the ruling of the court dismissing the whole action on a preliminary issue, the appellant applied to court to review its judgment pursuant to Order 39 (1) of the High Court Rules. Before the summons could be uplifted and without hearing the appellant, the court dismissed the application on the same ground that the application for judicial review was irregular.
Mr Simeza, on behalf of the appellant, filed written heads of argument based on three grounds but not argued in the order as per written heads. The first ground argued was that the learned trial judge erred in law when she held that notwithstanding the relief sought in the application for Judicial Review, the procedure used and sought was improper and irregular and dismissed the application for Judicial Review. The gist of the submission on this ground was that the mode of commencement of proceedings is determined largely by the relief sought. The argument by Mr Simeza was that if one sought the prerogative remedies in public law, such as certiorari, mandamus or prohibition, such remedies can only be obtained in an action for Judicial Review as an ordinary writ or indeed an appeal may not be appropriate for such action.
In countering the submission by Mr Simeza, Mr Jalasi supported the learned trial judge as having been on firm ground when she held that the application for Judicial Review was improper and irregular. Mr Jalasi contended that the provisions of Section 87 and 89 of the Lands and Deeds Registry Act, Cap 185 are very clear. They provide for a procedure to be followed by a party aggrieved by a decision of the Registrar in respect of any application under the Lands and Deeds Registry Act. Mr Jalasi submitted that in terms of Section 10 of the High Court Act, the appellant should not have rushed to the aid of Order 53 for Judicial Review under the White Book when the provisions of the Lands and Deeds Registry Act were self explanatory.
We have considered the submissions on this ground. In our view, it is not entirely correct that the mode of commencement of any action largely depends on the relief sought. The correct position is that the mode of commencement of any action is generally provided by the relevant statute. Thus, where a statute provides for the procedure of commencing an action, a party has no option but to abide by that procedure. Section 10 of the High Court Act, Cap. 27 is couched in very clear terms on the issue of practice and procedure. The sections reads:-
10 The jurisdiction vested in the court shall, as regards practice and procedure, be exercised in the manner provided by this Act and the Criminal Procedure Code, or by any other written law, or by such rules, order or directions of the court as may be made under this Act, or the said code, or such written law, and in default thereof in substantial conformity with the law and practice for the time being observed in England in the High Court of Justice.
The arguments by Mr Jalasi were that Section 87 of the Lands and Deeds Registry Act, Cap 185, provides for the practice and procedure under that Act of commencing actions by an aggrieved party. The section reads:-
87. If the Registrar refuses to perform any act or duty which he is required or empowered by this Act to perform, or if a Registered Proprietor or other interested person is dissatisfied with the direction or decision of the Registrar in respect of any application, claim, matter or thing under this Act, the person deeming himself aggrieved may appeal to the court.
Section 89 of the same Act provides for a procedure by way of appeal. There is, therefore, no default in practice and procedure in matters falling under the Lands and Deeds Registry Act. There is no choice between commencing an action by an application for judicial review or by an appeal.
We are satisfied that the practice and procedure in the High Court is laid down in the Lands and Deeds Registry Act. The English White Book could only be resorted to if the Act was silent or not fully comprehensive. We therefore hold that this matter having been brought to the High Court by way of Judicial Review, when it should have been commenced by the way of an appeal, the court had no jurisdiction to make the reliefs sought. This was the stand taken by this court in Chikuta v Chipata Rural Council (1) where we said that there is no case in the High Court where there is a choice between commencing an action by a writ of summons. We held in that case that where any matter is brought to the High Court by means of an originating summons when it should have been commenced by a writ, the court has no jurisdiction to make any declaration. The same comparison is applicable here. Thus, where any matter under the Lands and Deeds Registry Act, is brought to the High Court by means of Judicial Review when it should have been brought by way of an appeal, the court has no jurisdiction to grant the remedies sought. On this ground alone, this appeal cannot succeed. It therefore becomes unnecessary for us to consider the ground of appeal which stated that the learned judge misdirected herself in law when she held that the procedure on appeal from the decision of the Registrar of Lands and Deeds is spelt out in section 89 of Cap 185. We uphold the learned trial judge on this issue as well.
The last ground argued was that the learned trial judge erred in law in dismissing the application for review without affording the parties a hearing. The submission was that the denial of partiesto be physically heard infringed the rules of natural justice of the parties right to be heard. This submission in our view overlooked the fact that the application was supported by an affidavit sworn by counsel for the appellant himself in which he was then urging the court to review its ruling and to continue the proceedings as if they had been began by a writ. In the affidavit, counsel had further deposed that there were no clearly spelt out rules on procedure of appeal from the decision of the Registrar to the High Court.
In a short ruling, the court reiterated its earlier decision that the procedure used was improper and irregular. The court referred to section 89 in which the procedure is spelt out. We wish to take advantage of the present appeal to make the point that the content of what amounts to the hearing of the parties in any proceedings can take either the form of oral or written evidence. This depends on the nature of the application. Where the evidence in support of an application is by way of affidavit, the deponent cannot be heard to say that he was denied the right to a hearing simply because he had not adduced oral evidence. According to Practice Direction No. 11 of 12th January 1968, in all Ex-parte applications...The affidavit of facts supporting the application...,shall be left with the Assistant Registrar... There will be no need for the applicant to attend unless a Judge or Registrar otherwise directs...The Judges decision will be endorsed on the affidavit...
On the facts presented by the appellants application on review, there was no need for the parties to have presented oral evidence or oral submissions. The affidavit by counsel himself was adequate. On the other hand, the nature of these proceedings did not allow the court to treat them as begun by a writ as the procedure allowed is that by way of appeal. In the final analysis there is no leg on which this appeal can succeed. It is dismissed with costs. The appellant is, however, at liberty to commence the proceedings afresh following the procedure by law.