Arch Michel Scarantino v Susan Zuze Gehard and Anor (Appeal No. 126/2024) (1 November 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 126/2024 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: ARCH MICHEL SCARANTINO APPELLANT AND SUSAN ZUZE GEHARD 1 RESPONDENT ST ATTORNEY GENERAL RESPONDENT 2ND CORAM: Siavwapa JP, Chishimba and Patel, JJA On 14th October and, 1st November, 2024 For the Appellant: Mr. S. Chikuba and Mr. K. Sianga of Messrs. Paul Norah Advocates For the 1st Respondent: Mr. J.C. Kalokoni and Mrs. M. Manda of Messrs Kalokoni and Company For the 2nd Respondent: No appearance JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Court. CASES REFERRED TO: 1. Aaron Chungu v Peter Chanda & 9 Others SCZ/8/02/2023 2. Hakainde Hichilema & Geoffrey Bwalya Mwamba v Edgar Chagwa Lungu and 3 Others 3. Kansanshi Mining PLC v Zambia Revenue Authority SCZ 8 162 of 4. Crossland Mutinta & Others v Donovan Chipanda (SCZ No. 53 of 2018) 5. JCN Holdings Limited v Development Bank of Zambia SCZ No.22 of 6. Sichone v Attorney General & Another SCZ Appeal No.192 of 2014 7. BP Zambia PLC v Interland Motors Limited (2001) ZR 37 J2 8. Framaco v Camel Freight and 4 Others SCZ No.136 of 2016 9. Nyambe and Others v Konkola Copper Mines Plc (in Liquidation) SCZ ;; Appeal No.2 of 2022 10. Kelvin Hang'andu and Company (A firm) v Wehby Mulubisha SCZ No. 39 of 2008 11. Attorney General, Commissioner of Lands, Livingstone City Council and Captain John Mwamulima v Ambex Clothing Manufacturers Limited Appeal No. 134 of 2013 12. Union Gold Zambia Limited v Attorney General SCZ/ 14/2016 13. Polythene Products Zambia Limited v Cyclone Hardware and Construction Limited ZR (2012) Volume 3, 396 14. Chikuta v Chipata Rural Council (1974) ZR 241 15. Newplast Industries v The Commissioner of Lands and The Attorney General (2001) ZR 51 16. Antonio Ventriglia & Another v Finsbury Investment Limited SCZ Appeal No. 2 of 2019 LEGISLATION REFERRED TO: 1. The High Court Rules of the High Court Act, Chapter 27 of the Laws of Zambia 2. The Lands Act Chapter 184 of the Laws of Zambia 3. The Lands Tribunal Act No. 39 of 2010 WORKS REFERRED TO: 1. Halsbu ry's Laws of England, 5th Edition 1.0 INTRODUCTION 1.1 This appeal is against the composite ruling of Hon. Mr Justice G. C Mulenga delivered on 27th March 2024 arising from preliminary issues challenging the High Court's jurisdiction in land matters in claims relating to a challenge of certificate of re entry by the Commissioner of Lands. And whether the High Court has the power to transfer such matters to the Lands Tribunal as opposed to dismissal. 2.0 BACKGROUND J3 2.1 The 1st respondent commenced an action against the appellant :; and the 2nd respondent by way of writ of summons and statement of claim. The 1st respondent claimed the following reliefs: i) A declaration that the Plaintiff is the bona fide purchaser for value and the registered owner of Stand No. SIA/ 1149 / H, Siavonga; ii) A declaration that the purported re-entry of the said property by the 1st Defendant is null and void ab initio for contravening the provision of the Lands and Deeds Registry Act; iii) A declaration that the purported offer and sale of the said property by the 1st Defendant to the 2nd Defendant is null and void; iv) An order for the cancellation of the Certificate of Title No. CT_53160 issued by the 1st Defendant to the 2nd Defendant; v) An order of injunction restraining the 2nd Defendant from entering, building, or dealing with the said property in a manner that is prejudicial to the 1st Defendant's interest, whether by himself, or his agents or whomsoever until final determination of this matter; vi) Damages for inconvenience; vii) Any other relief that the Court may deem fit; and viii) Costs of and incidental to these proceedings. PRELIMINARY ISSUE RAISED J4 2.2 On 30th June 2023, the appellant raised a preliminary issue challenging the Court's jurisdiction to hear and determine the matter in light of the Supreme Court's decision in Aaron Chungu v Peter Chanda & 9 Others l 1 1. The Supreme Court guided that the proper Court to deal with matters challenging a certificate of re-entry was the Lands Tribunal. It is on this basis that the appellant sought dismissal of the matter. 2.3 The 1st respondent in her affidavit in opposition filed on 12th July 2023 conceded that the High Court no longer had jurisdiction to hear a matter challenging re-entry in the register. However, that the High Court had the power to transfer the matter to the Lands Tribunal and to not dismiss it. 2.4 On 12th July 2023, the respondent applied for an order to transfer the matter to the Lands Tribunal pursuant to Order 19 Rule (3) U) of the High Court Rules. It was contended that Order 19 Rule (3) U) of the High Court Rules gives the High Court jurisdiction to refe r a wrongly commenced matter to the correct division of the Court with the requisite jurisdiction. 2.5 Learned counsel for the appellant contended that the transfer of matter under Order 19 Rule 3 U) of the High Court Rules S.I 58 of 2020 only related to transfers between divisions of the JS High Court. The Lands Tribunal was not a division of the High .::: Court. Therefore, the Court could not transfer the matter from the High Court to the Lands Tribunal. 3.0 DECISION OF THE COURT BELOW 3.1 The learned Judge delivered a composite ruling on the preliminary issue and the application to transfer the matter. In addressing the 1st respondent's argument that the Court could transfer the matter pursuant to Order 19 Rule 3 U) of the High Court Rules, the Court stated that it could not employ the said provision. Order 19 Rule 3U) of the High Court Rules is used to refe r a matter wrongly commenced to the correct division and that the Lands Tribunal is not a division of the High Court. 3.2 The Court was of the view that the sole issue for determination was whether it had jurisdiction to refer the matter to the Lands Tribunal seeing as Order 19 of the High Court Rules did not confer it with that jurisdiction. The learned Judge stated that the Aaron Chungu case did not hold that the High Court had no jurisdiction in land matters but that jurisdiction was limited to disputes relating to section 13 (3) of the Lands Act. The learned Judge went on to state that jurisdiction to hear a matter and jurisdiction to refe r a matter are distinct. J6 3.3 Based on the learned Judge's analysis, the power to transfer the case could be exercised in this case. The Court cited Article 118 (2) (f) of the Constitution, emphasising its duty to pursue substantial justice. The Court was of the view that upholding the position that it lacked jurisdiction and dismissing the action, rather than transferring it, would leave many litigants without the remedies they would otherwise receive through litigation. 3.4 The Court also relied on section 13 of the High Court Act on the administering of law and equity concurrently. The Court found that it had no jurisdiction under section 13 (3) of the Lands Act to substantively deal with an action challenging the re-entry. Further, that the Court would take no further step if the powers began and ended with section 13 of the Lands Act. The Court stated that it however had jurisdiction under section 13 of the High Court Act in administering equity, to make orders and grant reliefs to any party in an action that is entitled to such measures. The learned Judge took the "equitable" step of transferring the matter to the Lands Tribunal. 4.0 GROUNDS OF APPEAL J7 4.1 Dissatisfied with the decision of the Court below, the appellant appealed, advancing four grounds as follows: i) The learned trial judge erred in law and fact when he proceeded to hear and determine the 1st respondent's application for transfer of the matter from the High Court to the Lands Tribunal, despite having determined that the High Court did not have jurisdiction to hear the said matter in the first place; ii) The learned trial judge erred in law and fact when he proceeded on his own accord to interrogate his equitable jurisdiction under section 13 of the High Court Act to transfer the matter herein to the Lands Tribunal without affording the parties an opportunity to address him on the same; iii) The learned trial judge erred in law and fact when he used his equitable jurisdiction to hear and grant the 1st respondent herein the application to transfer the matter to the Lands Tribunal when in essence there is no law and procedure to support the said transfer; and iv) The learned trial judge erred in law and in fact when he glossed over the fact that the 1st respondent had without any proper cause discontinued the same matter involving the same parties and same subject matter previously before the Lands Tribunal after 3 years, just to commence a fresh action in the High Court which is tantamount to forum shopping and abuse of the process of the Court and as such the Court ought to have J8 frowned upon such practices and not to entertain that the matter should again be transferred back to the Lands Tribunal knowing that the 1st respondent once discontinued the same matter which was before the Lands Tribunal. 5.0 APPELLANT'S HEADS OF ARGUMENT 5.1 The appellant filed its heads of argument on 20th May 2024. The essence of the arguments in ground one is that the Court below erred when it proceeded to hear and determine the 1st respondent's application to transfer the matter to the Lands tribunal when it had no jurisdiction to do so. 5.2 The case of Hakainde Hichilema & Geoffrey Bwalya Mwamba v Edgar Chagwa Lungu and 3 Others l 2 l, was cited where the Court held that it lost jurisdiction to hear the petition on account of the expiry of the time limit of fourteen days within which to hear a petition as prescribed by the Constitution. Any proceedings by it would be a nullity. 5.3 Counsel argued that in this matter, the Court below despite holding that it had no jurisdiction, proceeded to take a further step by transferring the matter to the Lands Tribunal. Counsel emphasised that the Court below did not lose jurisdiction in the matter but that h ad n o jurisdiction from commen cement of th e J9 matter. We were referred to the case of Kansanshi Mining PLC v Zambia Revenue Authority 1 3 1 to support the argument that the High Court only has jurisdiction if a matter 1s correctly commenced before it. 5.4 It was contended that the proceedings were a nullity and could therefore not be transferred. The Court below should have dismissed the matter after finding that it had no jurisdiction because any reliefs made thereafter would be a nullity. Reference was made to Crossland Mutinta & Others v Donovan Chipanda14 and JCN Holdings Limited v Development Bank of Zambial5 to buttress the argument. 5.5 The appellant abandoned ground two of its appeal. 5.6 In arguing ground three, Counsel posed the issue of whether or not the application of equity could supersede the law and procedure in the circumstances. Counsel contended that there is no law and procedure to support the transfer of the matter from the High Court to the Lands Tribunal. 5. 7 While acknowledging the equitable jurisdiction of the High Court under section 13 of the High Court Act, it was submitted that equitable jurisdiction is not exercised in a vacuum but follows the law and laid down procedure. We were JlO referred to the learned authors of Halsbury's Laws of England :; 5th Edition at paragraph 554 in support of the argument that jurisdiction in equity is exercised upon the principle that equity follows the law. 5.8 Learned counsel argued that section 13 of the Lands Act and the Aaron Chungu case are clear on where an aggrieved party on re-entry must commence their action. Further, there was no exceptional circumstance demonstrated to warrant a departure from the legal principle or rule on the commencement of re entry matters. Challenging a certificate of re-entry is a matter of a legal right accorded to an initial lessee and as a result, principles of law ought to prevail. Reliance was placed on the learned authors of Halsbury's Laws of England 4th Edition at paragraph 470 on equitable reliefs depending upon a legal right and that the principles of law still prevail. 5. 9 Counsel submitted that sections 8 and 9 of the Lands Tribunal Act No. 39 of 2010 provide for how matters must go to the Tribunal, which is by way of application or complaint. According to learned counsel, no procedure at law allows for the transfer of a matter from the High Court to the Tribunal. Jll 5.10 Learned Counsel went on to highlight challenges in effecting the decision of the Court below. That proceedings in the High Court typically begin with the filing of a writ of summons and a statement of claim. In contrast, cases before the Tribunal are commenced through a Notice of Appeal or a Complaint. Counsel contended that once a matter is transferred to the Lands Tribunal, it is expected to be adjudicated using the High Court's procedures, specifically, a writ of summons and a statement of claim. However, this approach is untenable because such procedures are not recognised or provided for within the jurisdiction of the Lands Tribunal. That in a nutshell, the Lands Tribunal has no jurisdiction to hear a matter brought by way of transfer. 5.11 It was submitted that in the event the 1st respondent decides to go to the Lands Tribunal by Complaint or Notice of Appeal after the ruling being appealed against, the 1st respondent would still be in breach of the High Court's ruling ordering the transfer. Counsel questioned the fate of the orders by the Judge, including the injunction, given that the court lacked jurisdiction to issue them in the first place. J12 5.12 It was contended that transfer of matters by the High Court whether by use of equitable jurisdiction is done by strict adherence to the laid down procedure under section 23 of the High Court Act. That in casu, the learned Judge did not obtain consent from the Lands Tribunal and that the transfer procedure cannot apply to the Lands Tribunal as the procedure in section 23 only relates to transfers between High Court divisions. Counsel submits that the learned Judge erred by using his equitable jurisdiction to transfer the matter and that we must annul the entire proceedings. 5.13 In ground four, the appellant argued that the transfer of the matter to the Lands Tribunal amounted to forum shopping and abuse of court process. We were referred to pages 292 and 294 of the record of appeal, the Notice of Complaint dated 7th May 2019 commenced against the appellant in the Lands Tribunal. The said matter was subsequently discontinued on 28th July 2021 by the 1st respondent without any justification. Allowing the transfer from the High Court to the Lands Tribunal where the matter had previously been commenced would amount to forum shopping and abuse of court process. The cases of Sichone v Attorney General & Another 161 and BP Zambia PLC J13 v Interland Motors Limited (7 were cited in support of the J argument that forum shopping amounts to abuse of court process. 5. 14 It was cont ended that the Court erred in holding that the 1st respondent made an honest mistake by moving the matter from the Lands Tribunal to the High Court when there was no explanation from the 1st respondent on why the matter was discontinued in the Lands Tribunal. Notwithstanding the above, at law, there is no such thing as mistaken belief regarding the commencement of a matter as it goes to jurisdiction. 5.15 The movement from one court to another is an abuse of the court. The appellant has suffered at the hands of the 1st respondent by being hauled from one court to another. We were urged to uphold appeal. 6.0 1 sT RESPONDENT'S ARGUMENTS 6.1 The 1st respondent filed her heads of argument dated 29th August 2024. In response to ground one, learned counsel submitted that in light of the Aaron Chungu case, the Court below "no longer" had jurisdiction to hear and determine the matter as it pertained to section 13 (3) of the Lands Act. However, the High Court retained its unlimited jurisdiction to J14 hear land matters. The application to transfer the matter to the Lands Tribunal did not delve into the merits or demerits of re entry under section 13 (3) of the Lands Act. 6.2 In response to the arguments that the proceedings in the Court below were null and void for want of jurisdiction, learned counsel argued that the Court below only lost jurisdiction at the time that the Supreme Court clarified the law in the Aaron Chungu case. 6.3 Counsel submitted that the Supreme Court in Aaron Chungu noted that the High Court's jurisdiction in re-entry matters had been unclear. Prior to the Supreme Court's guidance, it was understood that in re-entry matters, litigants could commence an action either in the Lands Tribunal or at the High Court as held in Framaco v Camel Freight and 4 Others '81 . 6.4 According to counsel, the presumption of retrospective application applies as established in our laws. The Supreme Court in the case of Nyambe and Others v Konkola Copper Mines Pie (in Liquidation) (9l held that legislation is not intended to operate retrospectively particularly so, where the enactment would have a prejudicial effect on a party's vested JlS rights. Therefore, the proceedings in the Court below were not null and void from the date of commencement. 6.5 Responding to ground three, learned counsel contended that the decision to transfer the matter to the Lands Tribunal cannot be impugned because equity follows the law. Counsel relied on the learned authors of Halsbury's Laws of England 5th Edition at paragraph 554 for this argument. 6.6 Counsel submitted that the Aaron Chungu case has laid a foundation by clarifying that the High Court does not have jurisdiction to hear re-entry matters thereby creating a novel situation whereby the High Court no longer has jurisdiction to hear re-entry matters including those properly commenced before the said decision was made. The refo re, this was a proper case in which the Court below exercised its equitable jurisdiction by transferring the matter to the Lands Tribunal as opposed to dismissing it. The change in the law should not result in penalising litigants, equity demands fairness. 6. 7 Addressing ground four, learned counsel referred us to the definition of forum shopping in Kelvin Hang'andu and Company (A firm) v Wehby Mulubisha as duplication of an 1io1, action before courts. J16 6.8 Counsel contended that the matter has not been before several judges at the same time, nor in more than one court at the same time. The 1st respondent discontinued the action in the Lands Tribunal because of delays. The matter had not been heard in the three years it was before the Lands Tribunal. In addition, at the time the matter was before the Lands Tribunal, the 1st respondent relied on the existing law which gave options of where to commence matters i.e. the Lands Tribunal or High Court. We were urged to dismiss the appeal with costs. 7.0 AT THE HEARING 7 .1 At the hearing the appellant cited the case of Attorney General, Commissioner of Lands, Livingstone City Council and Captain John Mwamulima v Ambex Clothing Manufacturers Limited in canvassing the position that both the High Court (ll) and Lands Tribunal had concurrent jurisdiction including a challenge to the certificate of re-entry. The case of Union Gold Zambia Limited v Attorney General 12 SCZ/ 14/2016 1 , reaffirmed the legal position of concurrent jurisdiction. It is the appellant's contention that at the time the matter was before the High Court, the position of the law was as above. The J17 position is said to have been overturned by the Aaron Chungu case. 7. 2 The application to transfer the matter was a separate independent application which the Judge had power to order pursuant to section 13 of the High Court Act. 7 .3 In response, the 1st respondent submitted that the position of the law then and now as enacted in the Lands Act 1995, Chapter 184 of the Laws of Zambia has remained the same. Therefore, members of the public will not be affected. Conversely, the transfer of the action has created a crisis as the requirements in the Lands Tribunal are different. 8.0 DECISION OF THE COURT 8.1 We have considered the appeal and the arguments advanced by learned counsel. The record shows that the appellant raised a preliminary issue challenging the High Court's jurisdiction to hear the matter as the respondent's matter was hinged on re ent ry. The 1st respondent conceded that though the Court below had no jurisdiction to hear the matter, it could transfer it to the Lands Tribunal, which had the requisite jurisdiction. The 1st respondent subsequently applied to transfer the matter to the Lands Tribunal. The appellant opposed the application stating J18 that the High Court having no jurisdiction to hear the re-entry, could not entertain any application. 8.2 Though four grounds of appeal have been raised, the issues for determination in our view are as follows: i) Whether the Court below had jurisdiction to order the transfer of the matter to the Lands Tribunal; and ii) Whether a matter can be transferred from the High Court to the Lands Tribunal pursuant section 13 of the High Court Act. 8.3 Simply put whether the Court below could exercise its equitable jurisdiction to transfer the matter challenging the certificate of re-entry of the land to the Lands Tribunal. And whether the parties were accorded an opportunity to be heard on the issue. Lastly, whether the discontinuance of the matter before the Lands Tribunal amounts to abuse of court and forum shopping. 8.4 The contention in ground one is that once the Court below found that it had no jurisdiction to determine the matter as guided by the Aaron Chungu decision, it should not have entertained the 1st respondent's application to transfer the matter. Counsel for the appellant argued that the commencement and reliefs sought in the Court below were J19 anchored on statute i.e. section 13 of the Lands Act. Therefore, the Court below ought not to have relied on the principle of equity to transfer the matter. The Court should have applied the law. 8.5 The 1st respondent maintained that the Court below had jurisdiction to transfer the matter. Counsel contends that the Supreme Court's decision of Aaron Chungu was clear, that the Court retained jurisdiction to determine land matter disputes as long as it did not relate to re-entry under section 13 of the Lands Act. Further, the proceedings could not be a nullity as they were commenced correctly because, at the time of commencement, a party had the option of commencing a matter on re-entry at the Lands Tribunal or the High Court. 8.6 As regards the position of the law in respect of claims challenging re-entry, we are of the firm view that the Supreme Court has consistently maintained its position. In the case of Polythene Products Zambia Limited v Cyclone Hardware and Construction Limited,t13 the Supreme Court stated that: l " .. we hold that the 1st defendant being aggrieved by the certificate of re-entry on Stand 12094, had no option but to appeal to the Lands Tribunal in its challenge of the certificate of re-entry. The 1st defendant did not do so. On the facts of this case, we hold that the learned trial judge had no J20 jurisdiction to entertain the 1st respondent's counterclaim on fraud and negligence in this action which was commenced by writ of summons." 8.7 The Supreme Court further stated in the Aaron Chungu case that the case of Faramco v Camel Freight Limited & Others'8 ' did not in any way overrule the Polythene Products case. Further, that the correct position is that while the High Court has unlimited jurisdiction in land matters, its jurisdiction is limited by section 13 (3) of the Lands Act. 8.8 Section 13 (3) of the Lands Act provides that a person aggrieved with the decision of the President to cause a certificate of re-entry to be entered in the Register may within thirty days appeal to the Lands Tribunal for an order that the Register be rectified. Statute having provided the mode of commencement of a claim challenging a certificate of re-entry, a complainant must appeal to the Lands Tribunal. We do not accept the argument by the appellant that the law prior to the Aaron Chungu case was that a litigant had the option of either filing a challenge to the certificate of re-entry in the High Court or Lands Tribunal. 8. 9 It is not in dispute that the 1st respondent initially commenced an action in the Lands Tribunal on 7th May 2018. This matter J21 was discontinued by way of Notice to Discontinue the matter dated 28th July 2021. We refer to the Notice to Discontinue the matter at pages 262 and 294 of the record of appeal. Thereafter, the 1st respondent commenced the action in the High Court. The reason given is that the matter was taking long to be heard, and as at the date of discontinuance, it had not been heard. 8. 10 As to the issue of jurisdiction to determine a challenge to a certificate of re-entry, the parties are agreed that the High Court has no jurisdiction to determine such a relief. 8.11 The issue is in respect of the decision to transfer the matter to the Lands Tribunal, which it had no jurisdiction to determine. Should the Court below have dismissed the matter as opposed to exercising its equitable jurisdiction to transfer the matter? The Court relied on section 13 of the High Court Act, which provides that: "In every civil cause or matter which shall come in dependence in the Court, law and equity shall be administered concurrently, and the Court, in the exercise of the jurisdiction vested in it, shall have the power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies or reliefs whatsoever, interlocutory or final, to which any of the parties thereto may appear to be entitled in respect of any and every legal or equitable claim or defence properly brought forward by them respectively or which shall appear in such cause or matter, so that, as far as possible, all matters in controversy J22 between the said parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided; and in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail." 8.12 It is trite that jurisdiction 1n equity 1s exercised upon the principle "that equity follows the law". Equity applies to the rules of law. Could the Court below transfer a matter it had no jurisdiction to determine? We are of the view that the Court below lacking jurisdiction to entertain a claim challenging the certificate of re-entry could not exercise any powers equitable or otherwise to transfer or refer the matter to the Lands Tribunal. 8.13 Fu rther, section 23 (1) of the High Court Act only provides for transfers of matters from one judge to another. It stipulates that: "Any cause or matter may, at any time or at any stage thereof, and either with or without the application of any of the parties thereto, be transferred from one Judge to another Judge by an order of the Judge before whom the cause or matter has come or been set down: Provided that no such transfer shall be made without the consent of the Judge to whom it is proposed to transfer such cause or matter." 8. 14 We held the lower Court erred by relying on the jurisdiction conferred by section 23 (1) of the High Court Act. The J23 provision is inapplicable as it refers to transfers between High Court judges and not to the Lands Tribunal. 8. 15 The 1st respondent by arguing that the Court retained jurisdiction to transfer the matter is attempting to separate the application for transfer from the main matter relating to re entry. The application for transfer arises from the main action in which the 1st respondent sought a declaration that the purported re-entry of the said property by the Commissioner of Lands is null and void. 8.16 As a result, the application for the transfer of the matter cannot be severed from the re-entry action. The Court belows of means jurisdiction to hear the main claim for re-entry, therefore, that it had no jurisdiction to hear any application in the action. The Court below did not have jurisdiction over the subject matter of the suit, the mode of commencement of the action for re-entry having been provided by the relevant statute. As authority, we refer to the Chikuta v Chipata Rural Council 141 and Newplast ! Industries v The Commissioner of Lands and The Attorney General !151 . 8.17 The Supreme Court in Antonio Ventriglia & Another v Finsbury Investment Limited !161 adopted the Kenyan Court's J24 sentiments that ''jurisdiction is everything (and that) without it, a court has no power to make one more step." As rightly argued by the appellant, without jurisdiction, the Court below could not do anything. 8.18 As the Court below having lacked the requisite jurisdiction it should not have entertained the 1st respondent's application, or granted the order to transfer the matter. 8. 19 Learned counsel queried what would become of the orders made by the High Court, such as the injunction since it did not have jurisdiction in the first place. Our view is that the Court below did not have jurisdiction to determine the claim challenging the certificate of re-entry, therefore the injunction stands automatically discharged from the date of our Judgement, as it emanates from the main claim of re-entry. 8. 20 The decision to transfer the case from the High Court to the Lands Tribunal represented a significant misdirection on the Court's part. 8.21 As to the issue raised in ground four, that commencing this matter in the High Court after discontinuing it the Lands Tribunal is an abu se of process of court or tantamount to forum shopping, the issue becomes academic after holding that the J25 • Court lacked jurisdiction. In any event, we are inclined to agree that discontinuing the Lands Tribunal matter and commencing an action before the High Court was forum shopping. A conduct highly frowned upon by the Court and in fact constitutes an abuse of process of court. 8.22 Instead, the Court below ought to have dismissed the action. Thereafter, the 1st respondent could proceed to recommence its action in the Lands Tribunal. The discontinuance of the matter in the Lands Tribunal did not preclude the 1st respondent from initiating the action again. No prejudice would occur to the 1st respondent by the dismissal of the action in the High Court on grounds of jurisdiction. The Lands Tribunal is the available avenue for the 1st respondent to seek the redress sought. 8.23 We find merit in the appeal and set aside the decision of the Court below to transfer the matter to the Lands Tribunal. We substitute it with the holding that the matter in the Court below stands dismissed for want of jurisdiction. 9.0 CONCLUSION 9. 1 The Court below had no jurisdiction to order the transfer of the matter from the High Court to the Lands Tribunal. The injunction granted in the lower Court stand discharged from ... J26 date of our judgment. We uphold the appeal, costs are awarded to the appellant, to be taxed in default of agreement. ..... . . . . . . . . . . . . . . . . . . . i . . ............... M. J. Siavwapa JUDGE PRESIDENT ..... ~~.f.:!2.. ......... . F. M. Chishimba A. N. Patel S.C COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE