ABSA Bank Zambia Plc v T and L Limited and Ors (Appeal No. 131/2024) (19 November 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 131/2024 HOLDEN AT LUSAKA (C ivil Jurisdiction) BETWEEN: ~--- .-.,,.._........ ABSA BANK ZAMBIA l S Nav 202; APPELLANT AND ·~•~~!O;,;-""J'P!.l :W:-1.·..:,,., .. T AND L LIMITED RESPONDENT TCHAGRA LIMITED 1 INTERESTED PARTY ATTORNEY-GENERAL INTERESTED PARTY 2ND Coram: Chashi, Sichinga and Sharpe-Phiri, JJA On 15 October and 19 November, 2024 For the Appellant: Mr. C. Sianondo of Messrs Malambo and Company For the Respondent: Mr. M. Batakathi of Malisa and Partners For the 1st Interested Party No Appearance For the 2nd Interested Party Mrs. B.M. Kamuwanga - Senior State Advocate of The Attorney-General's Chambers JUDGMENT Sichinga JA, delivered the judgment of the Court. Cases referred to: 1. S.P. Mulenga Associates International and Another v First Alliance Bank Zambia Limited, CAZ Appeal No. 244 of 2020 2. William David Carlisle Wise v E.F. Hervey Limited (1985) Z.R. 179 3. Drummond - Jackson v British Medical Association (1970) 1 WLR 4. Daniel Mwale (Male) v Njolomole Mtonga (Sued as Administrator of the Estate of the Late Gabriel Siwonamutenje Kapuma Mtonga}, SCZ Judgment No. 25 of2015 5. Howard and Company (Africa) Ltd v Behrens (1972) Z.R. 171 6. Whiteson L. Silwamba v Kitwe City Council, SCZ Appeal No. 86 of 7. City Express Service Limited v Southern Cross Motors Limited (Formally Maranouchi Motors Limited, SCZ Appeal No. 198 of 2006 J1 8. BP Zambia Plc v Zambia Competition Commission, SCZ Judgment No. 21 of 2011 9. Antonio Ventriglia & Another v Finsbury Investments Limited, SCZ Appeal No. 2 of 2019 10. John Kawadilu Kalenga (Suing as joint administrator of estate of the late John C.M. Kalenga) and Mususu Mambo Kalenga (Suing as joint administrator of the estate of the late John C.M. Kalenga) v Vinod Sadhu, CAZ Appeal No. 35 of 2019 11. Stanbic Bank Zambia Limited v Bentley Kumalo & 2 9 Others, SCZ Appeal No. 182 of 2014 12. Prisca Matimba Nyambe v Bank of Zambia, SCZ Appeal No. 207 of 13. Nkhata and Others v The Attorney-General (1966) Z.R. 124 14. The Attorney-General v Achiume (1983) Z.R. 1 15. Chief Chanje v Paul Zulu, SCZ Appeal No. 73 of 2008 16. Amchile Import & Export Limited and Others v Ian Chimanga (TI A Tawana Business Ventures) and Another, SCZ Appeal No. 43 of 17. Savenda v Stanbic Bank (Z) Limited, SCZ Appeal No. 37 of 2017 18. Chibwe v Chibwe, SCZ Judgment No. 38 of 2000 19. Benedict Chileshe v Mpongwe Development Co. Limited, SCZ Appeal No. 83 of 2002 20. The Attorney-General v Roy Clarke (2008) Vol. 1 Z.R. 38 21. Mususu Kalenga Building Limited, Winnie Kalenga v Richmans Money Lenders Enterprises (1999) Z.R. 27 22. Saluja v Gill (Tl A Gill Estate Agents Property Services) and Another (2002) EWHC 1435 (Ch) 24 23. Zhuang and Others v Bamu General Trading FZE, CAZ Appeal No. 57 of 2021 24. Lovely Malumani v Bonanza Cash Express Limited, CAZ Appeal No. 08/ 330/ 2021 25. Mumba v Lungu (2014) Vol. 3 Z.R. 351 26. Halcombe v Coulton (NSWCA) 22.12.1998 27. King v Victor Parsons & Company (1973) ALL ER 203 28. Indo Zambia Bank v Banda, SCZ Appeal No. 178 of 2014 29. Bello v Attorney-General (1986) CLR 12 (B) 30. The People v Henry Kapoko, CCZ Selected Judgment No. 43 of2016 31. Howard and Company (Africa) Ltd v Behrens (1972) Z.R. 171 32. Pigeon Investment Limited v Amiran Limited 2003/ HPC/ 0272 J2 Legislation referred to: 1. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia 2. The Limitation Act 1939 3. The British Acts Extension Act, Chapter 10 of the Laws of Zambia (the Extension Act) 4. The Rules of the Supreme Court of England (1965), 1999 Edition (White Book) 5. The Constitution of Zambia Act No.2 of2016 1.0 Introduction 1. 0 The appellant appeals against the Order of Shonga J , of the High Court, Commercial Division delivered on 15 January 2024. Upon hearing the application before her, Shonga J , dismissed the action for being statute barred. 2.0 Background 2 .1 In this part of the judgment, we shall refer to the parties by their designations in the court below. The appellant is Absa Bank Zambia Limited, the 1st defendant in the court below. Tchagra Limited and the Attorney-General were the 2nd and 3rd defendants, respectively, (now interested parties in this appeal). 2.2 On 2 October 2023, the plaintiff, T and L Limited (the respondent in this appeal) commenced this action in the High Court against the defendants, alleging that in 2005, the 1st defendant bank forcibly evicted it and its J3 shareholders from its mortgaged property known as Plot No. F / 899, Lusaka. It was alleged that the 1st defendant purportedly put the plaintiff under receivership without serving it or any other person with documents relating to the said receivership or foreclosure relating to the said property. 2.3 It was further alleged that the 1st defendant unscrupulously and unilaterally assigned the property to one Zulu Chanda and one Zulu Nimon purporting that the plaintiff had assigned the property to them. That the property was also fraudulently assigned to the 2nd defendant on the pretext that the plaintiff was under receivership. 2 .4 Having alleged that the 1st defendant carried out the preceding actions by fraudulent misrepresentation and or illegality, the plaintiff claimed damages for loss of property, for fraudulent misrepresentation, for loss of business, profit and property resulting from the fraudulent disposing of the property, among other claims. 2.5 As against the 2nd defendant, the plaintiff claimed an Order of restitution or the full value of property No. F /899 Lusaka and damages for fraudulent misrepresentation and/ or illegality. 2.6 Against the 3rd defendant, the plaintiff claimed an Order for the cancellation of the Certificate of Title relating to property No. F /899, Lusaka pursuant to section 33 of the Lands and Deeds Registry Act1 . J4 2.7 The 1st defendant filed its defence on 12 October 2023, denying the plaintiff's claims. It averred that the plaintiff's claims were also statute barred as stipulated by the Limitation Act 19392. On 17 October 2023, the 2nd defendant equally denied all of the plaintiffs claims. 2.8 On 18 November 2023, the 1st defendant filed an application to dismiss the matter for being statute barred pursuant to section 4(3), 5(1 ), 12 and 16 of the Limitation Act 1939 supra and the court's inherent jurisdiction. The application was based on the ground that the plaintiff stated in a letter of demand that it was evicted in 2005. That it ought to have commenced its action within twelve years and thus the period ended in 20 1 7. 3.0 The Order of the Court below 3.1 Having considered the 1st defendant's application, the learned Judge found that the action was based on an alleged fraud. She examined the affidavit evidence and found that the plaintiff became aware of the fraud in 2019. She held that the period of 12 years had not elapsed and that the action is not statute barred. She held that she had the requisite jurisdiction to entertain the action. 3.2 The learned Judge dismissed the application with costs. JS 4.0 The Appeal 4.1 Dissatisfied with the ruling, the 1st defendant, lodged this appeal advancing the following grounds: 1. The Court below erred in law and fact when it dismissed the application to dismiss the matter for being statute barred on the basis that the case in casu is covered by section 26 of the Limitation Act when the alleged fraud complained of could have been discovered sooner had the respondent exercised reasonable diligence; and 2. The Court below erred in law and fact when it held that the action stated accrued in 2019 when the respondent became aware of the alleged fraud, whilst the respondent admitted in their statement of claim, to have discovered the alleged fraud in 2008. 5.0 The Appellant's Arguments 5.1 The appellant filed its detailed heads of argument on 24 May 2024. Mr. Sianondo, learned counsel for the appellant, framed the question for the Court's consideration to be - When did the cause of action arise? To this end, in his written submissions, the two grounds of appeal raised interrelated issues and were argued together. We shall endeavour to condense them. 5.2 It was submitted that the respondent commenced the action in the Court below on 2 October 2023, claiming for alleged breaches which occurred in 2005. That this can be seen from the 1st respondent's advocates' letter of demand to the J6 appellant, at page 32 of the record of appeal, which reads in part as follows: "Our client further informs us that sometime in 2005, the Bank took over the farm and evicted the Directors of our clientforcing them to look/or oddjobs in order to survive." 5.3 It was advanced that the eviction having occurred in 2005 and the action having been commenced in 2023, the action comes more than twelve years after the circumstances upon which it is based. Further, that the 1st respondent admits in its statement of claim in paragraph 14 as appearing on page 12 to 13 of the record of appeal, to have carried out a search in 2008 and discovered anomalies. 5.4 Mr. Sianondo argued that the respondent ought to have discovered the cause of action complained of in 2005 when they were evicted from the property in question or through the Receiver who was their agent. That alternatively and furthermore, even if it did not discover the cause of action complained of at that time, it ought to have discovered it in 2008 when it carried out a search with Ministry of Lands. That in those circumstances, whether from 2005 or 2008, the matter is still outside the 12 year limit. 5.5 Mr. Sianondo submitted that the Limitation Act 1939 of the United Kingdom (the Limitation Act) applies to Zambia by virtue of the British Acts Extension Act3 . Section 2 of the Extension Act states that: "2. The Acts of the Parliament of the United Kingdom set forth in the Schedule shall be deemed to be of full force and effect within Zambia." J7 5.6 He submitted that sections 4(3) and 12 of the Limitation Act, which applies to Zambia by virtue of section 2 of the Extension Act and the schedule thereto entails that the action by the respondent is statute barred. 5.7 To buttress the submission that the matter 1s statute barred, counsel referred us to the case of S. P. Mulenga Associates International and Sonny Paul Mulenga v First Alliance Bank Zambia Limited1 where this Court stated as follows: "52. Coming to grounds four and five, which relate to the issue of whether this matter is statute barred, it is not in dispute that this action emanates from a mortgage deed between the parties. We have been referred to paragraph 975 of Halsbury's Laws of England, which de.fines a specialty to include a bond, a deed, covenant and a statute. It follows therefore that a mortgage deed is a specialty. This implies that it falls within the ambit of Section 2(3) of the Limitation Act which states that an action upon a specialty shall not be brought after the expiration of twelve years from the date on which the cause accrued." 5.8 Mr. Sianondo submitted that the above confirms the notion that any action related to a mortgage, has a limitation of 12 years. An aggrieved party must commence the action within the said limitation period. 5.9 On what constitutes a cause of action, counsel relied on the case of William David Carlisle Wise v E.F Harvey Limited2, where the Supreme Court held that: "A cause of action is disclosed only when a factual situation is alleged which contains facts upon which a J8 party can attach liability to the other or upon which he can establish a right or entitlement to a judgment in his favour against the other." 5.10 In addition, reliance was placed on Order 15/1/2 of the Rules of the Supreme Court4 which provides that: "The words have been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person." 5.11 Our attention was also drawn to the case of Drummond Jackson v British Medical Association3 at page 696 where the Court reasoned that: "A cause of action is an act on the part of the defendant which gives the Appellant his cause of complaint." 5.12 And to section 5(1) of the Limitation Act which provides that: "Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dis-possession or discontinuance." 5.13 Mr. Sianondo argued that it was clear that the respondent was dispossessed of the land in 2005 and that is when the cause of action arose. That even if we were to consider that the action was discovered in 2008, the action would still be statute barred as it was commenced outside the 12 years period. 5.14 On the issue of the Court's jurisdiction once a matter is found to be statute barred, counsel first referred us to the J9 case of Daniel Mwale (Male) v Njolomole Mtonga (Sued as Administrator of the Estate of the Late Gabriel Siwonamutenje Kapuma Mtonga)4 where the Supreme Court stated as follows: "The Statute of limitation when raised, brings forth a serious legal question as to whether the court has jurisdiction to entertain the action before it, given that it was brought outside the limitation period. It hardly bears repeating that the issue of jurisdiction is a threshold question and a lifeline for continuing any proceedings. Where a court holds the opinion that it has no jurisdiction the very basis for continuation for the proceedings before it- it must forthwith cease to deal with that matter." 5.15 Counsel submitted that the Daniel Mtonga case was dealing with section 4(3) of the Limitation Act and upheld the position that once you lose title, limitation periods come into play and beyond 12 years as in casu, the matter is statute barred. To the same measure, he relied on the case of Howard And Company (Africa) Ltd v Behrens5, a High Court decision. 5.16 To demonstrate a matter being statute barred from the time of commencement of proceedings, Mr. Sianondo relied on the case of Whiteson L. Silwamba v Kitwe City Council6 where the Supreme Court held inter alia as follows: "We have very carefully perused through and considered the evidence on record, the ruling of the learned District Registrar and learned Judge and the appellant's memorandum of appeal, additional and further additional JlO grounds of appeal and it is quite obvious to us that the action was statute barred at the time of commencing the proceedings. The appeal is therefore a complete waste of time and resources and it is dismissed with the contempt that it deserves." 5.17 The same point was made in the case of City Express Service Limited v Southern Cross Motors Limited (Formally Maranouchi Motors Limited7 where Chitengi , JS, held as follows: "Under Order 18/8 the learned trial Judge had not only jurisdiction to hear and determine the preliminary issue relating to Statute of Limitation and apply it but he was also bound to exercise his jurisdiction because this was a proper case. The action was clearly statute barred at the time of commencing the proceedings. As we said in the Silwamba case the trial would have been a waste of time and resources because the Respondent could at any time successfully raise the defence of the Statute of Limitation. Grounds one and six also faiL" 5.18 Equally, counsel relied on the case of BP Zambia Plc v Zambia Competition Commission8 . 5.19 From the authorities cited above, it was submitted that when a matter is statute barred, as is, in the present case, the Court has no jurisdiction. That the issue of jurisdiction is cardinal in any proceedings as all the orders depend on the jurisdiction of the tribunal. The case of Antonio Ventriglia & Others v Finsbury Investments Limited9 was relied u pan. 5.20 Counsel submitted that in view of the lack of jurisdiction, on the basis of being statute barred, to determine the issue Jll now before Court, the Court should not go beyond this matter. That this position of the law is reinforced by section 16 of the Limitation of Action, 1939 which provides as follows: "Extinction of title after expiration of period - Subject to the provisions of section seventy-five of the Land Registration Act, 1925 at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) or an action to enforce an advowson, the title of that person to the land or advowson shall be extinguished." 5.21 It was argued that the respondent's right was extinguished and this entombs the action into eternal quiescence through dismissal. 5.22 Mr. Sianondo argued that Judge Shonga did not consider that extension of time under the Limitation Act 1939 for fraud is only so done under section 26 of the Act. He referred to what we stated in the case of S.P. Mulenga Associates International and Sonny Paul Mulenga v First Alliance Bank Zambia Limited supra that: "We agree with Mr. Pindani that the appellants diligently pursued their cases arising out of the mortgage deed and they could have discovered the alleged fraud with reasonable diligence. It is our considered view that Section 26 of the Limitation Act 1939 does not apply to this action and it is therefore statute barred. We accordingly dismiss grounds four and five, for lack of merit." 5.23 The final point made on behalf of the appellant was that the non-response to the inquiries made by the respondent does J12 not constitute fraudulent concealment. Our attention was drawn to the case of John Kawadilu Kalenga (Suing as joint administrator of estate of the late John C.M. Kalenga) and Mususu Mambo Kalenga (Suing as joint administrator of the estate of the late John C.M. Kalenga) vs Vinod Sadhu10 where this Court observed that: "Turning to the issue of fraudulent concealment as alleged by the applicants, we considered Section 26(6) of the Limitation Act, which allows courts to stop time or postpone the limitation period, where the defendant conceals the acts giving rise to the action. We found that the fact that the respondents did not respond to the applicants' letters was insufficient to prove concealment of fraud. We thus upheld the trial Judge that Section 26(6) of the Limitation Act was inapplicable on the facts of this case." 5.24 It was submitted that for a party to rely on fraudulent concealment, the same must be pleaded as to how the said party concealed the action. Our attention was drawn to the case of Stanbic Bank Zambia Limited V Bentley Kumalo & 29 Others11 where the Supreme Court guided that for a party to avail themselves of the plea of concealment by fraud, the particulars of the alleged concealed facts must be stated. 5.25 It was argued that the particulars given by the respondent do not relate to concealment of action by fraud. That in paragraph 22 of the statement of claim as exhibited on page 13 of the record of appeal, the pleadings reveal that: J13 "The Plaintiff will show at trial that the 1st Defendant took possession of property No. F/899 Lusaka from the Plaintiff and disposed of the same through fraudulent misrepresentation and of illegality." 5.26 It was contended that the above pleading neither shows an allegation of concealment of action by fraud nor does the affidavit in opposition. The case of Prisca Matimba Nyambe v Bank of Zambia12 was relied upon to illustrate that time starts running from the time when, with reasonable diligence, a plaintiff would have discovered the cause of action. It was submitted that as illustrated by these submissions, the court below erred in holding that the matter was not statute barred. We were urged to allow the appeal. 6.0 The Respondent's Arguments 6.1 Opposing the appeal on behalf of the respondent, Mr. Batakathi relied on the respondent's heads of argument filed on 24 June 2024. Responding to the two grounds in concert, Mr. Batakathi argued that an appellate court was restricted to the factual grounds upon which it could review the judgment of a trial court. To this end, counsel drew our attention to the acclaimed cases of Nkhata and Others v The Attorney-General13, The Attorney-General v Achiume14 and Chief Chanje v Paul Zulu 5 The import of 1 . these authorities being that an appellate court will not reverse findings of fact made by a trial court unless it is satisfied that the said findings were either perverse or made J14 in the absence of any evidence or upon a misapprehension of facts or that there were findings which, on a proper view of the evidence, no trial court acting correctly can reasonably make. 6.2 Mr. Batakathi contended that based on the evidence before the trial court, the appellant did not prove, on a balance of probabilities that the action was supposed to commence in 2005, when according to the appellant, the cause of action occurred. That the trial Court was presented with uncontroverted affidavit evidence by the respondent that the alleged fraud was discovered in 2019, by one of the respondent's directors. As such, there is nothing erroneous or perverse about the learned Judge's finding warranting reversal by this Court. 6.3 Counsel argued that the appellant had failed to show that the learned trial Judge had made perverse findings, which it was its duty to show as per the cases of Amchile Import & Export Limited and Others v Ian Chimanga (TIA Tawana Business Ventures) and Another16 and Savenda v Stanbic Bank (Z) Limited17 . 6.4 Mr. Batakathi contended that in her ruling, Judge Shonga properly evaluated the evidence before her together with the arguments for and against the application, leading to the dismissal of the appellant's application. He drew our attention to the cases of Chibwe v Chibwe18 and Benedict Chileshe v Mpongwe Development Co. Limited19 and The , Attorney-General v Roy Clarke20 to the effect that a JlS court's conclusions must be based on the facts on record, that a party must lead evidence to support their claims, and that a Judge must decide the case on the evidence before him, respectively. 6.5 Counsel in supporting the learned Judge's decision argued that the appellant did not provide any evidence to demonstrate that the respondent did not discover the alleged fraud in 2019, as presented in the affidavit evidence. 6.6 Further, it was submitted that the appellant could not rely on issues raised in the grounds of appeal as the same were not raised in the court below. In support of this submission, our attention was drawn to the cases of Mususu Kalenga Building Limited, Winnie Kalenga v Richmans Money Lenders Enterprises21 Saluja v Gill (TIA Gill Estate , Agents Property Services) and Another22 Zhuang and , Others v Bamu General Trading FZE23 and Lovely Malumani v Bonanza Cash Express Limited24 The . import of these authorities being that a matter which was not raised in a lower court cannot be raised in a higher court as a ground of appeal. 6.7 It was argued that the appellant was raising new issues on appeal that suggest that the respondent ought to have known of the alleged fraud sooner had he exercised reasonable diligence. Further, that the respondent admitted in its statement of claim that to have discovered the alleged fraud in 2008. That these issues did not grace the lower Court's record. To buttress these submissions, counsel J16 relied on the cases of Mumba v Lungu25 and Halcombe v Coulton26. 6.8 In the alternative, Mr. Batakathi submitted that in the event that this Court accepted that the grounds of appeal were properly before it, the record of appeal at page 45 shows that the respondent's Managing Director testified that he had no abode in Zambia, and as such, he was forced to relocate to Zimbabwe where he stayed until 2014, when he returned to Zambia after securing new employment. Therefore, the respondent could not exercise reasonable diligence. In support of this submission, counsel relied on Black's Law Dictionary which defines 'reasonable diligence' at page 573 as: "A fair degree of intelligence expected from someone of ordinary prudence under circumstances like those at issue." 6.9 That a reading of the above passage is understood by the respondent to mean that reasonable diligence is subjective depending on the circumstances one finds himself in. It was argued that in the present case, the respondent's Managing Director left the country with no opportunity to exercise reasonable diligence to discover the alleged fraud which was ongoing even up to 2019. 6.10 Counsel submitted that the respondent was opposing the appellant's position on the basis of Section 26 of the Limitation Act 1939 which postpones the limitation period in the case of fraud or mistake or where a party alleges that J17 his right of action has been concealed by the fraud of a defendant. In support of this submission, reliance was placed on the case of King v Victor Parsons & Co.27 where Denning M.R stated at pages 209 to 210 that: "The law by section 26 (b) of the Limitation Act 1939, when the right of action is concealed by the fraud of the Defendant or his agent, the period of limitation shall not begin to run until the plaintiff has discovered the fraud." 6. 11 Reliance was also placed on the case of lndo Zambia Bank v Banda and Stanbic Bank Zambia Limited v Bentley Kumalo & 29 Others supra. 6.12 The final point made by the counsel on behalf of the respondent is that the appeal ought to be dismissed in the interests of justice. Our attention was drawn to Article 118 of the Constitution5 to the effect that justice shall be administered without undue regard to procedural technicalities. It was argued that this provision entails that a court must deliver substantive justice by ensuring that each case is determined on its own merits. Reliance was also placed on the Nigerian case of Bello v Attorney General29 to the effect that the spirit of justice does not reside in forms of formalities, or in technicalities, nor in the triumph of the administration of justice to be found 1n successfully picking one's way between pitfalls of technicality. 6.13 Counsel also placed reliance on the case of The People v Henry Kapoko30 and the part where the Constitutional J18 Court held that Article 118 (2) (e) is 'intended to avoid a situation where a manifest injustice would be done by paying unjustifiable regard to a technicality.' On this submission, counsel urged this Court to uphold the ruling of the lower Court as it was granted in the interest of justice. 7 .0 The 1st Interested Party's Arguments 7 .1 The 1st interested party did not file any heads of argument for the Court's considerations. 8.0 The 2nd Interested Party's Arguments 8.1 Mrs. Kamuwanga, learned Senior State Advocate, relied on the State's heads of argument filed on 24 June 2024. As the two grounds are interrelated, they were argued together. 8.2 In supporting the appeal, Mrs. Kamuwanga's arguments concur with Mr. Sianondo's submissions. She submitted that it is abundantly manifest that the cause of action in casu accrued in 2005, when the respondent was evicted from the subject property by the appellant. She equally relied on the case of William David Carlisle Wise v E.F Hervey Limited supra regarding when a cause of action accrues. 8.3 Mrs. Kamuwanga submitted that the respondent filed its writ of summons and statement of claim on 2 October 2023, after a period of almost twenty-three (23) years. She drew our attention to the cases of Howard and Company J19 (Africa) Ltd v Behrens31 Whiteson L. Silwamba v Kitwe , City Council supra, and Pigeon Investment Limited v Amiran Limited32 on the issue that a matter being statute barred can be determined at the commencement of proceedings. 8.4 In conclusion, Mrs. Kamuwanga reiterated the point that the respondent was evicted from the disputed property in 2005 and that is when the cause of action arose. That even if the fraud was discovered in 2008, the matter would still be statute barred because it was commenced outside the 12 year period prescribed for recovery of land. She submitted that the action is incompetent on account of being statute barred and urged the Court to uphold the appeal. 9.0 The Appellant's Arguments in Reply 9.1 Responding to the respondent's arguments, the appellant filed heads of argument in reply on 31 July 2024. We have intently considered the arguments and the authorities cited. To avoid repetition, we shall refer to the submissions made in our discussions when the occasions to do so emerge. 10.0 Our Considerations and Decision 10.1 In this appeal, we have carefully reviewed the lower Court's ruling, the grounds of appeal, and the arguments from both sides, focusing on whether the respondent's action is statute-barred under the Limitation Act, 1939, or put J20 differently as Mr. Sianondo stated, when did the cause of action arise? 10.2 On behalf of the appellant, Mr. Sianondo argued that the respondent's cause of action accrued in 2005 when the respondent was dispossessed of the subject property due to alleged fraud. Counsel contended that since the action was only initiated in 2023, over 12 years after dispossession, it is time-barred by sections 4(3) and 12 of the Limitation Act. Mrs. Kamuwanga, on behalf of the State, concurred with the appellant's arguments. 10.3 The appellant placed reliance on sections 4(3) and 12 of the Limitation Act, 1939 supra. They provide as follows: "4. "No action shall be brought by any other person to recover any land after the expiration of twelve years from the date in which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person: Provided that, if the right of action first accrued to the Crown or a spiritual or eleemosynary corporation sole through whom the person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the Crown or the corporation sole, or of twelve years from the date on which the right of action accrued to some person other than the Crown or the corporation sole, which ever period first expires. 12. Limitation of redemption actions - when a mortgagee of land has been in possession of any of the J21 mortgaged land for a period of twelve years, no action to redeem the land of which the mortgagee has been So in possession shall thereafter be brought by the mortgagor or any person claiming through him." 10.4 It was argued in this matter that the cause of action arose sometime 2005. That, that is when the alleged fraud occurred. Further, we were referred to section 5(1) of the Limitation Act supra, which provides that: "Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dis-possession or discontinuance." 10.5 The respondent contended that it was unaware of the fraud until 2019, when it learned through police investigations of the alleged fraudulent dealings by the appellant. The respondent argued that this discovery postponed the limitation period, relying on section 26 of the Limitation Act, which allows for postponement in cases of fraud that conceal the cause of action. 10.6 Both sides of the appeal make common cause in stating that the respondent was dispossessed of the land in 2005. However, to make sense of the respondent's case, we endeavoured to put the gist of its averments in opposing the application to dismiss before the lower Court, into context. The respondent's Managing Director stated in his joint J22 affidavit opposing the application to dismiss that following the directors' eviction from the farm, he immediately moved to Zimbabwe as he had nowhere to stay in Zambia. That he returned to Zambia in 2014. Sometime in late 2019, he learned through one Margaret Whipp, a director in Tchagra Farming Limited, the 2nd defendant, and one Kawana Mubukwanu, a police officer, that there were allegations of fraud and corruption on how the appellant dealt with the farm leading to his eviction, directors and other occupants of the farm. Following these revelations, he conducted a search at PACRA and discovered that the respondent was never placed under receivership. That he only became aware of the alleged fraud in 2019. 10.7 In its writ and statement of claim, the respondent averred in paragraph 14 that on 18 April 2008, it conducted a search on the Lands and Deeds Registry at Lusaka and discovered that the Registrar of Lands and Deeds fraudulently assigned the farm in contention to third parties purporting that the respondent had assigned the said farm to the third parties. Pages 12 to 13 of the record of appeal refer. 10.8 We note that the respondent claimed to have discovered the fraud earlier, in 2008, contradicting the lower court's finding of a 2019 discovery date. This inconsistency indicates that with reasonable diligence, the respondent could have acted by 2008, making the claim time-barred by 2020. Additionally, we find that the respondent took no J23 reasonable steps to investigate the alleged fraud after dispossession in 2005. 10.9 We have intently scrutinized all the authorities presented by counsel. We refer here to precedents that require a plaintiff to act diligently once dispossession occurs. The cases of Prisca Matimba Nyambe v Bank of Zambia supra and S.P. Mulenga Associates International and Another v First Alliance Bank Zambia Limited supra are to the effect that where the right of action is concealed by the fraud of the defendant, the limitation period may be postponed, such that it begins to run from the time the fraud was discovered. 10. l0The appellant in this regard simply stated that the respondent was evicted in 2005 and the alleged fraud would have been discovered then with reasonable diligence. We come to the conclusion that the respondent had access to sufficient information by 2008, to pursue a claim, even if the alleged fraud had occurred. 10.11 Having considered the affidavit evidence and the pleadings on record, we come to the inescapable conclusion that the finding by the learned trial Judge that twelve (12) years must be counted beginning in 2019 is perverse, and we accordingly set it aside. In this regard, we find merit in the grounds of appeal. J24 11.0 Conclusion 11.1 In summary, we uphold the appellant's position that the respondent's claim is time-barred based on the statutory period prescribed by the Limitation Act, 1939 and the requirement of reasonable diligence as held by the Supreme Court. The appellant has successfully shown that the respondent does not qualify for any exceptions under the Limitation Act that would allow for the waiving of the 12year limitation period for bringing this type of action. Therefore, the case is indeed statute-barred. 11.2 This appeal is accordingly allowed with costs to the appellant and 2nd interested par , same to be taxed in default of agreement. COURT OF APPEAL JUDGE ................ ············r~···· D.L. YI. Siching , SC N.A. Sharpe-Phiri COURT OF APPEA JUDGE COURT OF APPEAL JUDGE I J25