Wayne Michael Wright v Shah Jayendra Kumar and Anor (APPEAL No. 92/2021) (25 April 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 92/2021 HOLDEN AT LUSAKA (Civil Jurisdiction) \'\}iLIC OF lAMBt BETWEEN: ~ Of ~ hl.[zsA~R ~ ,rr::. WAYNE MICHAEL WRIGH APPELLANT AND ~ Rnx sno1.1. , ,,~,. SHAH JAYENDRA KUMAR 1 ST RESPONDENT 1 GLENN WRIGHT RESPONDENT 2ND CORAM: SIAVWAPA, JP, CHASHI AND SICHINGA, JJA On 21st March and 25th April, 2023 FOR THE APPELLANTS: MR. 0. HATIMBULA OF A.C. NKAUSU & CO ~ FOR THE 18T RESPONDENT: MR. S. MWEEMBA OF MESSRS MWEEMBA & SWITZ ASSOCIATES JUDGMENT SIAVWAPA, JP delivered the Judgment of the Court. Cases referred to: 1. Mususu Kalenga Building Limited & Another v Richmans Money Lenders Enterprises - SCZ Judgment No 4 of 1999 2. Peter David Lloyd v J.R Textiles Limited - SCZ Appeal No 137 of Legislation referred to: 1. Statute of Limitations Act 1939 2. Lands and Deeds Registry Act CAP 185 of the Laws ofZ ambia 1.0 INTRODUCTION 1. 1 An appeal against the Judgment of the Hon. Mr. Justice Kenneth Mulife dated 18th February 2021 in favour of the 1st Respondent. 2.0 BACKGROUND 2.1 In June 2014, the 1st Respondent, who held a power of Attorney, donated by his son, Keval Jayendra Shah who was resident abroad, entered into a Contract of sale with the Appellant's brother, Mr. Glenn Wright. 2.2 By the said Contract the Appellant's brother agreed to sell and the 1st Respondent agreed to purchase stand number 3098, Livingstone. 2.3 Mr. Glenn Wright was selling the property as Director of Wright Trading Company Limited in whose name the property was registered. 2.4 Consideration was subsequently paid in full and the vendor gave possession of the property to the purchaser. J2 2.5 In 2018, the 1st Respondent discovered that the Appellant had registered a caveat on the property claiming encroachment by the property purchased by the 1st Respondent. 2.6 Along the way, the Appellant locked the cold room and the kitchen which the 1st Respondent's tenants were using causing the 1st Respondent to incur losses as the tenant vacated the i premises in December 2019. 2.7 This caused the 1st Respondent to commence an action in the High Court on 5th March 2020 asking the Court to grant the fallowing reliefs among others; 1. Removal of the caveat 2. Damages for loss of business 2.8 The Appellant filed a defence and counter-claim stating that when the property he holds, being stand 3097and the one sold by his brother to the 1st Respondent, stand No. 3098 were partitioned, it transpired that the kitchen, the toilets and the cold room fell on the side of his property. 2.9 The Appellant thereby claimed for 1. Mesne profits and an order restraining the 1st Respondent from further use of the facilities. J3 3.0 DECISION OF THE HIGH COURT 3.1 After considering the evidence before him, the learned Judge ordered that Mr. Glenn Wright, the one who represented the Vendor Company be joined and gave him an opportunity to be heard but he did not turn up on the set date. 3.2 The learned Judge found as a fact that the 1st Respondent's property extended into the Appellant's property but dismissed the claim on the basis that the Appellant had failed to raise the issue of encroachment at the time Mr. Glenn Wright disclosed his intention to sell the property. 3.3 On the legality of the caveat, placed on the basis of ' encroachment, the learned Judge found that the complaint was statute barred pursuant to section 4(3) of the Statute of Limitations Act 1939, as it accrued in 2004 when the two properties were split. 3.4 The learned Judge accordingly ordered the removal of the caveat C and dismissed the counterclaim. 4.0 THIS APPEAL 4.1 The following are the grounds of appeal as set out 1n the Memorandum of Appeal; J4 1. The learned trial Judge erred both in law and fact when he held that the 1st Defendant's claims for encroachment are statute barred. 2. The learned trial Judge erred both in law and fact when he held that the 1st Defendant has not sufficiently proved his enforceable interest by placing a caveat on stand on 3098 in the alleged encroachment on stand no 3097. 3. The learned trial Judge misdirected himself both in law and in fact that the 2nd Defendant was legitimately l empowered to sell stand No 3098 and its entire ! attachments. 4. The learned trial Judge misdirected himself both in law and fact when he totally disregarded the evidence on record. i 5.0 ARGUMENTS IN SUPPORT 5.1 In ground one, the Appellant argues that at the time of separation of the two properties, 3097 and 3098, the 2nd Respondent had access to the use of the toilets, cold room, kitchen and staircases which are part of stand 3097 by mutual understanding between the two Wright families, as the said facilities were not part of stand 3098. JS 5.2 The Appellant has further argued that the encroachment only accrued in 2013 when the 1st Respondent claimed to have bought the facilities set out in paragraph 5.1 of this Judgment. 5.3 In ground two, the argument is that the rule against parole evidence did not apply as no contradictory evidence was introduced. Further, that based on the claim by the 1st Respondent that he had also bought the facilities which lie within stand 3097, the Appellant was within the provisions of section 76 of the Lands and Deeds Registry Act to register a caveat to protect his interest. 5.4 In ground three the Appellant argues that since the cold room, kitchen, staircase and part of the toilets are on stand 3097, the 2nd Respondent had no power to sell them as they are not covered in the Contract of sale. j_ 5.5 In ground four, the Appellant has largely repeated the arguments in ground three to dispute the learned Judge's application of the parole evidence rule. 6.0 ARGUMENTS IN OPPOSITION 6.1 In ground one, the Respondent has argued that the learned Judge below was on firm ground to hold the claim for ! encroachment statute barred. The argument is based on the J6 understanding that if there is any encroachment, it occurred in August 2004 when the properties were shared. 6.2 The Respondent has also argued that at the time of sharing, the Appellant never made any claims of encroachment against the 2nd Respondent until 2018 after the 2nd Respondent had sold the property to the 1st Respondent. 6.3 With reference to minutes of the sharing agreement dated 1st August, 2004, and paragraphs 6 and 7 in particular, the 1st ' Respondent has argued that the Respondent sold to the 1st 2nd Respondent stand 3098 together with the portions the Appellant claims to be encroaching upon his property. 6.4 The arguments in ground two are an extension of those in ground one. The 1st Respondent, in dealing with the finding by l the learned Judge below that the 1st Defendant (Appellant) had, t not sufficiently justified the placing of a caveat on the property, argued that the learned Judge below rightly so held. The 1st Respondent reproduced a lengthy excerpt from the Judgment of the Court below running from page 4 7 to 49 of the Record of Appeal. i 6.5 Essentially, the argument is that the Appellant, in the letter to the 2nd Respondent dated 27th May, 2013, in which he expressed his concerns over the 2nd Respondent's intention to J7 sell, did not raise the issue of encroachment. He instead only raised concern over whether the new owner would allow him access to the rear fire escape and maintenance of cleanliness. 6.6 In ground three, the 1st Respondent repeats the arguments in grounds one and two to the effect that the 2nd Respondent sold stand No 3098, which he was empowered to do as it was his including the kitchen, toilets and the cold room which had also been transferred to the 2nd Respondent in 2004 when the two brothers shared the properties. 6.7 In ground four, the 1st Respondent argues that the allegation that the learned Judge did not consider all the evidence before him is not true and further that the issue of there being a clause to sell parts of stand No 3097 and a clause on the use of the twq I stands in the August 2004 agreement were not canvassed in the Court below and should not be entertained by the Court. The case of Mususu Kalenga Building Limited & Another v Richmans Money Lenders Enterprises1 was called in aid of the argument. 7.0 ANALYSIS AND DECISION 7.1 On consideration of the Judgment, grounds of appeal and the arguments, our view is that there are two issues for consideration namely; whether the claim for encroachment is statute barred and if not whether the sale by the 2nd Respondent J8 to the 1st Respondent included the portions claimed by the Appellant. 7.2 In order to resolve the first issue, the question that begs an answer is when did the encroachment occur? The two parties are divided, with the Appellant arguing for 2013 when the 1st Respondent claimed to have bought the said portions. The 1st Respondent on the other hand, claims that the encroachment occurred when the Appellant and the 2nd Respondent shared the two properties in 2004. 7.3 The evidence on the Record is that the two properties were initially one and owned by the Appellant. { 7.4 Later, the Appellant decided to subdivide the property into two ·l and gifted stand 3098 to his brother, the 2nd Respondent while he retained stand 3097. Certificates of Title were accordingly issued in respect of the two properties. 7.5 In due course the Appellant heard from his employees that the 2nd Respondent had plans to sell his property, being Stand NQ ) 3098. In 2010 he approached the 1st Respondent with whom h~ ' had done business before to advise him on the understanding between him and the 2nd Respondent over their properties. J9 7 .6 According to the Appellant, the 1st Respondent denied planning to buy the property dismissing the story as a mere rumour. But ·; that he soon noticed that the 1st Respondent was carrying out renovations on the property. 7.7 The Appellant's claim that the 1st Respondent is occupying part of the kitchen, toilets and a small office is based on a survef .. • • o~T diagram of 2019 exhibited at page 95 of the Record of Appeal~ . t Further, the Appellant claims that the stair case sits wholly ori stand 3097 while the kitchen and the toilets are sitting on both properties. 7.8 At the time the two brothers shared the two newly created subdivisions, the portions claimed by the Appellant were already ir\ existence and the 1st Respondent purchased stand 3098 as i{ \ was at the time of the subdividing. 7. 9 This then means that the encroachment was already in existence before the 1st Respondent purchased the property because it was created at the time of sub-dividing the original ·J property into two. : ti t l 7.10 The cause of action based on encroachment therefore, accrued at the time of the sub-division and the sharing between the brothers but there was no complainant based on family considerations. JlO t 7 .11 The fact that the Appellant was aware that the toilets and the. kitchen were partially in his property but used by the occupants of stand 3098 meant that he had acquiesced to the arrangement. 7.12 It is not correct that the cause of action only arose when the Appellant became aware of the 2nct Respondent's intention to sell. 7 .13 Based on the views expressed, the learned trial Judge was correct to hold that the caveat registered by the Appellant based on encroachment was statute barred. .;, ..,_ 7 .14 The point of departure however, is the fact that both propertie~ ' are on title and in view of the position of the law that adverse· possession cannot extinguish a registered proprietor's title, (see case of Peter David Lloyd v J.R Textiles Limited2 the Appellant , cannot be impeded by the Statute of Limitation. 7.15 From the above stated position of the law, it seems that the, .; Statute of Limitation is only applicable to a claimant whose ' claim to land resides in equity having no title to it. The fact that the one in possession has title to the land or not is immaterial as any claim brought after the limitation period will be caught up by section 4(3) of the Statute of Limitation 1939. • Jll 7 .16 In this case, we were also aided by the oral arguments in augmentation of the heads of argument by counsel for the parties. When asked by the Court to clarify whether the alleged encroachment on stand 3097 was physical or by usage, both counsel agreed that the encroachment was largely by usage. 7.17 This position is supported by the survey diagrams occurring at I pages 73, 90 and 95 of the record of appeal all showing the boundary between the two properties placing the claimed encroaching portions wholly in stand No 3097, which is for the Appellant. These three diagrams are in contrast to the one exhibited at page 102 of the record of appeal whose boundaries have been altered to place the claimed portions of the properties :.. within stand No 3098, owned by the 1st Respondent. 7 .18 The diagraph at page 73 is as described in Certificate of Title in respect of stand No 3097 / 18 as delineated under survey diagram No 802 of 1989 and the Certificate of Title was issued on 14th December, 2004. However, the Certificate of Title .; relating to stand No 3098/ 18 occurring at page 97 of the record of appeal, was issued on 2nd August 2006 and is stated to represent a piece of land particularly delineated under survey diagram No 803 of 1989. Surprisingly, the said survey diagram is not exhibited to show its boundaries in relation to stand 3097 and the encroaching portions of the properties. I l l J12 7 .19 In light of the above stated facts, we are more inclined to accept the boundaries as set out in the survey diagram at page 73 of the record of appeal which is part of the Certificate of Title in respect of stand No 3097 which was issued earlier than the Certificate of Title relating to stand No 3098. Further, we do not accept the diagram exhibited at page 102 of the record of appeal as authentic as it has no background information and neither does it attach to the Certificate of Title relating to stand No 3098. 7.20 Having found as above, we accept that the kitchen, the cold room and the toilets which are the subject of the encroachment i claim by the Appellant are part of stand No 3097 and as such, they are part of the Appellant's property. It follows that at the time the Appellant and the 2nd Respondent shared the two properties, there indeed was an unwritten understanding between the two that the 2nd Respondent and all those using stand No 3098 would have unimpeded access to and use of the ' disputed facilities. 7 .21 The issue therefore, is whether the 1st Respondent, upon purchasing the property from the 2nd Respondent, automatically acquired the right to use the disputed facilities. 7 .22 We have looked at the letter dated 27th May 2013 under the hand of the Appellant addressed to the 2nd Respondent, by J13 which the 2nd Respondent had offered stand No 3098 to the Appellant for sale (see page 104 of the record of appeal). 7 .23 The Appellant effectively rejected by proposing conditions precedent to the intended sale by the 1st Respondent and by the buyer if they decided to sell in future. In that letter, as pointed out by the 1st Respondent, the Appellant raised two concerns namely; whether the new owner would allow him rear access from the fire escape and whether the new owner would maintain the cleanliness and upkeep of the building and the area as was the case. t 7 .24 From the diagram at page 90 of the record of appeal, it seems that the fire escape the Appellant was referring to can only be accessed from stand No 3098. It is for that reason that the Appellant was worried that the new owner might deny him access to the only available fire escape. 7.25 We therefore, do not find the argument by the 1st Respondent that the fact that the Appellant did not raise the issue of encroachment in the letter of 27th May 2013, implied that the disputed facilities belonged to stand 3098. To the contrary, it is our considered view that the Appellant did not talk about the disputed facilities because the encroachment was only by unauthorised usage thereof. J14 7.26 The next issue is whether the Appellant had demonstrated sufficient interest in stand 3098 to sustain a caveat against it. We have looked at the caveat exhibited at page 110 of the record of appeal whose scope was to restrain the 1st Respondent from registering any transfer or mortgage or other instrument affecting stand No 3098 pending the resolution of the encroachment by the Court. 7.27 We think that to the extent that the Appellant was claiming unlawful use of his facilities by way of encroachment by the 1. owners of stand No 3098, he did not have sufficient interest to ' register a caveat that restricted the 1st Respondent in the manner he could deal with his property including registering a mortgage against it which is the right of every property owner. The best the Appellant could have done was to register a caveat against the use of the disputed facilities by the 1st Respondent until the encroachment is resolved. 8.0 CONCLUSION 8.1 In view of our analysis of the issues in this appeal and the views we have taken, it is our position that the first ground has succeeded on the basis that the Statute of Limitation does not apply against a proprietor who holds a Certificate of Title. The claim based on encroachment was therefore, not Statute barred. J15 8. 2 The second ground also succeeds on the basis that the scope of the caveat registered exceeded the interest of the Appellant in his claim against encroachment upon stand No 3097 by the 1st Respondent. 8.3 In view of our position on the first two grounds, the third ground is rendered otiose because the 2nd Respondent could not have sold and he did not sell the disputed facilities which we have held to lie wholly within the boundaries of stand No 3097 8.4 Finally, the fourth ground has no merit and we dismiss it accordingly. 8.5 The end result is that the appeal substantially succeeds and we allow it accordingly. 8.6 We however, note that the 1st Respondent bought stand No 3098 with a view that he would be entitled to use the facilities in issue even though they are part of stand No 3097. Depriving the 1st Respondent access to the said facilities would reduce on his business prospects from the property. 8.7 It is therefore, our strong recommendation that the parties ~ reach an agreement on the 1st Respondent purchasing the said. facilities so that the boundaries between the two properties can be re-surveyed to extend to the said facilities. Alternatively, the J16 parties can agree on conditions that would enable the 1st Respondent to continue using the said facilities. 8.8 In view of the nature of this appeal, we order each party to bear their own costs for the appeal. ........... ". .....J .".. ............." M.J SIAVWAPA JUDGE PRESIDENT J . C A.SHI D . . A,SC COURT OF APPEAL JUDGE COURT OF JUDGE J17