Madaza v Coleen (186/2004) [2008] ZMSC 2 (15 January 2008);

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IN THE SUPREME COURT OF ZAMBIA SCZ JUDGMENT NO. 2 OF 2008

HOLDEN AT LUSAKA APPEAL NO. 186 OF 2004

(Civil Jurisdiction)

BETWEEN:

ROSEMARY PHIRI MADAZA APPELLANT

AND

AWADH KAREN COLEEN RESPONDENT

CORAM: Sakala, C.J., Mumba and Silomba, J. J.S.

On the 25^th April, 2006 and 16^th January, 2008

For the appellants: Col. P. Banda, Paul Pandala & Company

For the Respondents: Mr. D. Kasote, George Kunda & Company

______________________________________________________________________________

J U D G M E N T

SILOMBA, J. S., delivered the judgment of the Court.

Cases referred to:

1. Attorney General Vs Marcus Kampumba Achiume (1983) ZR 1

2. Mundia Sikatana Vs The Attorney General (1982) ZR 109

3. Honorius Maurice Chilufya Vs Chrispin Kangunda (1999) ZR 166

4. Sablehand Zambia Limited Vs Zambia Revenue Authority,

Appeal No. 56 of 2003

The delay in delivering the judgment is deeply regretted. This was due to the heavy work schedule.

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This is an appeal against the judgment of the High Court dated the 14^th day of July, 2004. The appellant, who was plaintiff in the Court below, commenced an action through a specially endorsed writ, claiming possession of Stand No. 5548, Lusaka, from the respondent (then defendant) who, it was alleged, was occupying it unlawfully and wrongfully. The appellant also claimed mesne profits and costs.

The evidence on record was that the appellant was the one who secured Stand No. 5548, Kalundu, Lusaka, from the Commissioner of Lands. This was in 1977. After securing the stand, the appellant developed it. In 1978 she decided to have it registered in the name of her son, George Mwakatala, and at the same time place a caveat. The appellant place a caveat because she knew her son would sell the house one day.

On a date unknown, the appellant received information that her son had sold the house. When she enquired with officials at the Lands and Deeds Registry, she found that the house had been sold to the respondent despite the caveat that had been place on the register prohibiting any dealings in the stand.

The foregoing being the case, the appellant decided to go to Court where it was ordered to revoke the title deed of the respondent so that ownership could revert to her son. Thereafter, title was changed from her son into her name, whereby she took occupation of the house in 1996. She stayed in the house up to

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The 5^th November, 1999 when she was evicted to give way to the respondent.

When cross-examined, the appellant failed to show proof that she secured the stand in 1977 from the Commissioner of Lands. She recalled that her son took her to Court over the caveat on the property because he wanted it removed in order for him to sell the house. She also recalled that the house was sold between 1990 and 1991. She further recalled that when her son took her to Court, he obtained an injunction restraining her from interfering with the stand. She testified that when the caveat of 1992 was removed, she place another one in 1996 after she got a title deed.

The evidence the trial Court heard in rebuttal was that in 1993 the respondent came across Stand No. 5548, Libala Road in Kalundu, Lusaka, which was owned by George Mwakatala. The respondent and George Mwakatala then signed a sale agreement for the sale and purchase of the stand for K30,000,000. The sale, including the transfer of the property to the respondent, was finalized in 1994.

Prior to the sale agreement, the Lands Register was inspected and it was found that there was a caveat lodged by the appellant. However, when the assignment deed was lodged for registration the caveat had been removed.

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According to the respondent, the injunction obtained by George Mwakatala against the appellant (his mother) was used to remove the caveat in 1994.

After a short stay in the house, the respondent was evicted in 1996 by the bailiffs because the house was said to belong to the appellant. Through the intervention of her lawyers, the property reverted to her in 1999. When she was cross-examined, the respondent told the trial Court that when the existence of a caveat was brought to her attention, the lawyers of George Mwakatala assured her that it would be removed. Later, the respondent was told that the caveat had been removed and that was when she paid the last instalment. She denied that the caveat was dubiously removed. She was, however, shocked to be evicted from the house on the ground that George Mwakatala had transferred the house to the appellant who was the lawful owner and not herself.

The evidence and the submissions were evaluated by the learned trial Judge and the question he posed was: who was the owner of the property prior to the sale to the respondent? The learned trial Judge found that the appellant had not shown that she built the property in the name of her son, George Mwakatala. He, accordingly, rejected her claim that she build the house in the absence of any evidence to show how much she spent on the house.

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As a consequence, the learned trial Judge had no difficulty in finding that the appellant had no basis for placing a caveat on the property. Having found that the appellant had no interest to protect through the caveat, the learned trial Judge dismissed her claim and ordered her to surrender her certificate of title, which she obtained dubiously after her son had sold the property to the respondent, for cancellation.

The appellant has filed two grounds of appeal. These are:

1. The learned trial Judge misdirected himself in law and in fact when he failed to adjudicate on all matters that were in controversy between the parties during the hearing in the Court below.

The learned trial Judge misdirected himself in law and in fact when he held that the appellant had no interest in Stand No. 5548, Lusaka, when in fact it is well settled law that a certificate of title is Prima facie evidence of ownership.

The appellant, through counsel, filed heads of argument which were

reinforced by oral arguments. In relation to ground one, it was contended in the heads of argument that it was incumbent on the learned trial Judge, sitting as a Court of first instance, to adjudicate on all matters that are brought before him.

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The case of The Attorney General Vs Marcus Kampumba Achiume ⁽¹⁾ was cited in aid.

It was asserted by the appellant’s counsel that from the word go, the learned

trial Judge reduced the case before him to being Mwakatala Family Vs The Respondent. For example, the learned Judge found George Mwakatala to have fraudulently executed a Deed of Gift but relied on his affidavit evidence in finding against the mother, now the appellant.

Counsel submitted that with such unfavourable pre-disposition towards the appellant, the learned trial Judge wrongly found that there was nothing other than the appellant’s word to show that she built the house. As far as counsel was concerned, this was a clear misdirection on the fact. Counsel contended that apart from her evidence on oath, upon which she was cross-examined, there was unquestionable corroboration in form of printouts from the Lands and Deeds Registry, which the trial Court could not ignore or gloss over.

To show that the appellant was further corroborated on her evidence, counsel referred to the evidence on record of Khan, then Registrar of Lands and Deeds, who confirmed that the appellant acquired the stand but later surrendered it to the state to allow her son acquire title over it. Counsel submitted that there was evidence before the learned trial Judge, which showed that the transactions with

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the respondent were set aside in an earlier order of Kabazo Chanda, then a High Court Judge, which was ignored in preference for a later temporary ex-parte order, resulting in the caveat being removed without reference to the caveator.

In his oral submissions, counsel repeated what was canvassed in the heads of argument.

On ground two, it was contended in the heads of argument that since the certificate of title of the respondent was cancelled by the order at page 249 of the record of appeal in 1996, the appellant’s certificate of title issued thereafter was conclusive evidence that the appellant was the owner of Stand No. 5548 from the date the title deed was issued. Relying on the case of Mundia Sikatana Vs The Attorney General, ⁽²⁾ counsel submitted that no High Court Judge can over rule or reverse an order of another High Court Judge.

Counsel invited the Court to declare the learned trial Judge’s attempt to cancel the appellant’s certificate of title as invalid because the order that reinstated the caveat of the appellant and cancelled the respondent’s certificate had the same power, authority and jurisdiction as that of the learned trial Judge. Counsel prayed for an order to have the case remitted back to the High Court for retrial before another Judge. In the alternative, counsel urged us to uphold the appeal since there was abundant evidence in favour of the appellant.

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In his oral submission, counsel made no attempt to depart from what was contained in the heads of argument.

The respondent, through counsel, also filed her heads of argument, which she relied upon. The heads of argument were reinforced by oral submissions. With regard to ground one, counsel contended in the heads of argument that it was difficult to follow the appellant’s assertion that the learned trial Judge did not adjudicate on all matters in controversy. As far as counsel was concerned, the learned trial Judge analyzed the evidence that was before the Court; that the trial Court found as a fact that the plaintiff provided no documentary evidence to back up her claim of having built the house from her own resources.

In his oral submission on ground one, counsel conceded that the order at page 249 of the record meant that the sale of Stand No. 5548 to the respondent was nullified. Counsel, however, maintained that at the time of sale in 1994 there was no caveat. Counsel submitted that when George Mwakatala sold the house to the respondent in 1994, the appellant was aware but she decided to take the Registrar to Court two years later to reinstate the caveat when she knew that her son had sold the property. As far as counsel was concerned, the Registrar had no interest to protect except the respondent.

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On ground two, counsel submitted, in his heads of argument, that a title deed obtained fraudulently cannot be prima face evidence of ownership of property. Our attention was drawn to the case of Honorius Maurice Chilufya Vs Chrispin Kangunda ⁽³⁾. With regard to the case at hand, counsel submitted that the respondent bought the property after the caveat had been removed and after paying the full purchase price to the owner of the property, George Mwakatala.

On the certificate of title of the appellant, counsel submitted that the appellant could not explain in the Court below when and where the donor executed the Deed of Gift and whether he was in Zambia or outside the country. As far as counsel was concerned the evidence of DW2 and DW3 clearly showed that the Deed of Gift was forged; that it was not possible for George Mwakatala to sell the house to the respondent and at the same time gift the property to his mother two years later when he was already out of the country. There was no oral submission on ground two.

We have carefully considered the record of the proceedings before the lower Court, as well as, the judgment that is the subject of the appeal. We have also carefully evaluated both the heads of argument and oral submissions made before us by the respective counsel.

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From our records, we note that at the conclusion of the submissions by counsel, we made an order relating to Stand No. 5548 for counsel for the appellant to furnish the Court with an official certificate of search duly issued by the Chief Registrar of Lands and Deeds pursuant to Section 23 (1) and (2) of the Lands and Deeds Registry Act, Chapter 185 of the laws. We also ordered the appellant to provide certified copies of the certificates of title for both the appellant and the respondent if indeed they are both reflected in the Register maintained by the Lands and Deeds Registry as being valid.

In addition, we ordered the production of certified copies of deeds of transfer, that is, the deed of assignment between George Mwakatala and the respondent and the Deed of Gift between George Mwakatala and the appellant. The Court ordered that all these documents be made available to the Court by the 26^th May, 2006 but regrettably none have been filed with the Court.

The foregoing notwithstanding, we have carefully considered the two grounds of appeal and our view is that ground two is more relevant and crucial to the outcome of the appeal. We say so because the assessment we have of the judgment of the trial Court is that, in relation to ground one, the learned trial Judge endeavoured to resolve all the issues in controversy in a balanced manner. We have, therefore, not come across instances of bias against the appellant by the

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learned trial Judge. Like counsel for the respondent, we have encountered difficulties in trying to follow what was being asserted by the appellant under ground one. The problem was made worse by both counsel when their submissions went beyond the purview of the ground of appeal and raised issues relating to the history of the stand and the caveat, which were not relevant at all. As for the caveat, we think that its relevance is in ground two. Ground one is dismissed.

The documents we ordered to be produced were relevant to the resolution of the issues raised in ground two of the appeal. This means that in the absence of these documents, the Court must restrict itself to the evidence on record. In dealing with ground two, we recap the relevant evidence. The evidence is that upon completion of the house on Stand No. 5548, the appellant put it in the name of her son, George Mwakatala, and placed a caveat on the stand to protect it from being sold as she considered it to be a family property.

In 1994, her son sold the property to the respondent. The undisputed evidence on record was that the caveat the appellant had lodged was removed on the strength of an ex-parte order of injunction to allow for the registration of the assignment from George Mwakatala, as owner of the stand, to the respondent, as purchaser of the stand. When the appellant confirmed the change of ownership,

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she sued the Registrar of Lands and Deeds in 1996. At page 249 of the record, the High Court ordered the Registrar of Lands and Deeds to re-register the caveat and nullify all transactions entered from the 28^th September, 1994 up to the date of the order.

The evidence is that after the grant of the order by the lower Court, as above, George Mwakatala transferred the stand to the appellant in 1996 by way of a Deed of Gift. The appellant later got title in her name. Consequently, the respondent was ejected from the stand in 1996 to give way to the appellant as the new owner. The respondent did not sit idle. Her lawyers intervened and challenged the eviction of the respondent from the house and the house was restored to her 1999, hence these proceedings.

From the statement of claim, the appellant claimed two orders before the trial Court. These were the orders for possession of Stand No. 5548, Lusaka and mesne profits. In our understanding, the claim for possession presupposed that the appellant was the owner of the stand with a valid certificate of title but could not access the house because it was being occupied by the respondent illegally. Had claim succeeded, she would have proceeded to obtain a writ of possession, which she would have used to evict the respondent.

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In her defence, the respondent challenged the title deed of the appellant as having been obtained through forgery in that the Deed of Gift, which gave birth to the certificate of title, was allegedly never signed by the said George Mwakatala. Was the defence of forgery or fraud sufficiently pleaded? Our answer is no. As we said in the case of Sablehand Zambia Ltd Vs Zambia Revenue Authority ⁽⁴⁾ a defendant wishing to rely on the defense of fraud must ensure that it is clearly and distinctly alleged. When it comes to trial, the defendant must lead evidence so that the allegation is clearly and distinctly proved.

Looking at the defence, we find that the respondent did not give sufficient particulars of forgery. At trial, the evidence of George Mwakatala was unsecured and in the absence of his evidence the hand writing expert was not called to demonstrate, with convincing clarity, that the signature of George Mwakatala on the Deed of Gift was forged.

On the other hand, we find that the evidence of DW2 and DW3, which the respondent relied on as proof of forgery of the Deed of Gift, was based on rumour or hearsay. In particular, the evidence of DW3 did not prove that George Mwakatala was outside the country when the Deed of Gift was signed. The evidence of DW2 was centered on the use of the ex-parte order of injunction to

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remove the caveat placed by the appellant, which was not proof that the Deed of Gift was forged.

As we have already pointed out, there was a caveat placed by the appellant to prohibit any dealings in Stand No. 5548. So when an assignment of the stand to the respondent was executed no registration should have taken place unless the caveator consented. The evidence is that the assignment was, nonetheless, registered because the caveat was removed on the strength of an ex-parte order of injunction.

In terms of the Lands and Deeds Registry Act, the removal of the caveat in those circumstances without the consent of the appellant, as caveator, was unlawful and a breach of the law. At that stage, the remedy available in the law was to go to Court to seek an order for the rectification of the register under Section 11 (2) of the Lands and Deeds Registry Act. The appellant actually went to Court but with the Registrar of Lands and Deeds as the respondent, leaving out the respondent in this appeal, as an interested party and George Mwakatala, as the prime mover for the removal of the caveat through an ex-parte order of injunction.

Although the evidence and the submissions based on the heads of argument are not clear on the fate of the order at page 249 of the record of appeal, it would appear to us that it is still effective as no effort was made to challenge it by the

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respondent. In the course of his oral submission, counsel for the respondent was asked to shed light on the status of the order at page 249 of the record and his response was that the sale of the stand to the respondent was nullified by the said order.

We reiterate that in the absence of the official certificate of search, the only evidence that may shed more light on the effect of the order at page 249 of the record is the computer print-outs at pages 117 and 118 of the record. The computer print-outs were filed in Court on the 16^th November, 1999 under a notice of intention to produce documents. It is likely that they may not be up to date. An official certificate of search, issued by the Chief Registrar as per our order, would have been, as between the parties, conclusive on the current state of the register in relation to the property in issue. In our view, it would have assisted us a lot as it would have been current.

Back to the computer print-outs, the entry at No. 11 at page 117 shows that the order dated 6^th may, 1996 at page 249 of the record, was registered on the 20^th May, 1996 and the caveat of the appellant at entry No. 8 was reinstated. The effect of the registration of the High Court order was that the entries at Nos. 9 and 10, at page 118 of the record, recording the transfer and issuance of title to the respondent, were deleted from the register.

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Clearly, the computer print-out at page 117 is a continuation of the one at page 118. Because of the High Court order, entries Nos. 9 and 10 at page 118 are missing from page 117 after they were deleted. So, in terms of the register, it is the appellant who has a valid certificate of title. We have dismissed the assertion that the appellant’s title to the stand was dubiously obtained for lack of evidence. To the contrary, we find that the certificate of title of the respondent was successfully challenged and removed from the register because it was dubiously obtained.

With the foregoing observations, we find that the learned trial Judge’s finding that the appellant had no interest in Stand No. 5548 is not based on evidence. It is accordingly reversed. We confirm that the appellant is the owner of the stand. The appeal is therefore, allowed and the order of possession is granted with costs to the appellant to be taxed in default of agreement.

We have some difficulty in ordering the payment of mesne profits because the respondent appears to have regained the house through some process of law. As a holder of a title deed, she firmly believe she was entitled to the house. This was so because not even her lawyers told her that her title deed had been cancelled. On the evidence, it cannot therefore be said that the respondent was illegally in the house.

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Reading through the evidence, the impression we got was that the respondent put up other developments in addition to the house she bought from George Mwakatala. If this position is correct, then it is up to the parties to resolve the matter as between themselves. However, the possible solution we would recommend, in view of our decision, is for the additional structures to be valued and paid for by the appellant, provided there is proof of planning permission for them from the Lusaka City Council Planning Authority.

…………………………...

E. L. SAKALA

CHIEF JUSTICE

…………………………. ……. ……………………………….

F. N. M. MUMBA S. S. SILOMBA

SUPREME COURT JUDGE SUPREME COURT JUDGE