Modest Hamalabbi v Canaan Simaambo Mweetwa (sued in his capacity as Administrator of the Estate of Late Jameson Hammoya) and Anor (Appeal No. 268 of 2023) (2 October 2024) – ZambiaLII

IN THE COURT OF APPEAL FOR ZAMBIA Appeal No. 268 of 2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 0 2 OCT 2J2'1 MODEST HAMALABBI APPELLANT AND CANAAN SIMAAMBO MWEETWA 1sr RESPONDENT (sued in his capacity as Administrator of the Estate of Late Jameson Hamooya) CHRISPIN HACHOOSE 2ND RESPONDENT CORAM: SIAVWAPA JP, BANDA-BOBO, PATEL, JJA On 17 th September & 2 nd October 2024 For the Appellant: Mr. M. Nyirenda Messrs. SLM Legal Practitioners For the 1st & 2nd Respondent: Mr. E. Tembo Messrs. M. Wamunyima Legal Practitioners JUDGMENT Patel, JA, delivered the Judgment of the Court. J1 Cases referred to: 1. Aristogerasiomos Vangelatos and Another v Metro Investments Limited- SCZ Selected Judgment No. 35 of 2016. 2. Zambia Revenue Authority v Professional Insurance Corporation Limited-SCZ Appeal No. 34 of 2017 3. James Onwuka v Joyce Siandwazi Reid and 3 Others SCZ - Appeal No. 29 of 4. Charity Oparaocha v Winfrida Murambiwa (2004) Z.R. 141 (S.C.) 5. Antonio Ventriglia and Another v Finsbury Investments Limited SCZ- Appeal No. 02/2019 6. JCN Holdings Limited v Development Bank of Zambia (2013} 3 ZR 29 7. Owners of Motor Vessel 1'Lillian S" v Caltex Oil (Kenya) Limited 1989 KLR.19 Legislation & Rules referred to: 1. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia. 2. The High Court Act, Chapter 27 of the Laws of Zambia. 3. The Court of Appeal Rules, Statutory Instrument No.65 of 2016 4. The Interstate Succession Act, Chapter 59 of the Laws of Zambia J2 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of Mwenda J, delivered on 24th May 2023, on an action commenced by the Appellant against the 1st and 2nd Respondents for an order for specific performance of contract of sale, an order for vacant possession of Subdivision A of Lot 33, Silwili Settlement Scheme ("the property") and an injunction preventing the 2nd Respondent from constructing any buildings on the said land which is the subject of the dispute. 2.0 BACKGROUND 2.1 The Appellant (Plaintiff in the Court below), commenced these proceedings against the pt and 2nd Respondents (Defendants as they were below), by Writ th of Summons and Statement of Claim on 6 February 2018, claiming the following reliefs: I. An order for specific performance of the contract of sale; II. An order for vacant possession of Subdivision A of Lot 33, Silwili Settlement Scheme. Ill. An injunction to prevent the 2nd Respondent from erecting any buildings or making any improvements to the said land before conclusion of this matter; IV. Costs; and V. Any relief the Court deems fit. J3 2.2 The background to this case, according to the Appellant, is that he entered into an agreement with the ist Respondent, in his capacity as administrator of the estate of the late Jameson Hamooya, who was the proprietor of the property in dispute. 2.3 According to the Appellant, the agreed consideration for the property was One Hundred Thousand Kwacha {Kl00,000.00) payable in three installments. th The Appellant paid the first instalment on 29 January 2014 and the second th and third instalments on 10 January 2015. Subsequently, the Appellant paid all the fees incidental to the survey and obtained survey diagrams for the subdivision and also paid for State Consent and Property Transfer Tax. 2.4 Having completed the above, the Appellant requested theist Respondent for completion of the transaction so that he could execute the Assignment and release the Certificate of Title to the Appellant and convey the agreed portion of land. However, theist Respondent became evasive and refused to sign the Assignment and release the Certificate of Title to the Appellant. 2.5 The Appellant was informed by his brother one Ceasor Hamalabbi, who confirmed, that the 2nd Respondent had erected a fence around the subdivision and had already paid full purchase price. According to the st Appellant, the 1 Respondent denied having offered the land to another. In view of the above, the Appellant sought legal redress and brought this matter to Court on the basis that he was the first offeree. J4 th 2.6 On 19 February 2018, the Appellant obtained an ex-parte order for an interim injunction which was confirmed on 8 th April 2019 restraining the 2nd Respondent from making any improvements to the property. 2.7 Theist Respondent entered conditional appearance on 22nd March 2018. 2.8 The ist Respondent did not file a defence which prompted the Appellant to enter final judgment in default of defence against the 1 st Respondent on 9th August 2018 for an order for specific performance of the contract of sale and costs. 2.9 On 27 th April 2018, the 2nd Respondent filed his defence and asserted that st the 1 Respondent gave him vacant possession of the land in issue and stated that he was a bona fide purchaser of the property. 3.0 DECISION OF THE LOWER COURT 3.1 The learned Judge in the Court below considered all the arguments and submissions presented by both the Appellant and the two Respondents. 3.2 Having considered the facts, and the evidence adduced by the parties, the learned Judge outlined the issues for determination as follows: Whether or not there was a valid contract of sale for the purchase of 100 1. hectares of Subdivision A of Lot No.33, Silwili Settlement Scheme between the Appellant and the 1st Respondent; ii. Whether or not the Appellant is entitled to an order for specific performance of the Contract of Sale against the Respondents; JS iii. Whether or not the Appellant is entitled to an order for vacant possession of Subdivision A of Lot 33, Silwili Settlement Scheme against the Respondents. 3.3 With respect to the first issue, the learned Judge was of the considered view that the Contract of Sale of 29th January 2019 exhibited on pages 10 - 11 of the Appellant's Bundle of Documents, possesses all the essential elements of a valid contract in that offer and acceptance of the agreement is demonstrated by the signatures of the parties to the same, and it was the parties' intention to create a legally binding agreement. Further, that it is trite that fraud must be distinctly pleaded and proved. She was of the considered view that the Respondents, apart from not pleading fraud, did not prove their allegations of fraud on the part of the Appellant to the required standard. Ultimately, she found that there was a valid contract of sale between the Appellant and the 1st Respondent for the property. 3.4 Turning to the second issue, the learned Judge noted that it was not in dispute that the 2nd Respondent bought a piece of land from the 1 st Respondent and that the 2nd Respondent paid the sum of Kl00,000.00 which the ist Respondent identified as belonging to the 2nd Respondent. It was her considered view that this qualified the 2nd Respondent as a purchaser for value of the land in issue. With regard to the element of notice, the learned Judge noted the 2nd Respondent's testimony that he conducted a search at Ministry of Lands, that there was no caveat on the property, and it was free nd from encumbrances. The learned Judge noted that the 2 Respondent J6 admitted to not producing evidence of a printout from the Lands Register to demonstrate that there were no encumbrances on the land. 3.5 In view of the above, the learned Judge was inclined to accept the 2nd Respondent's testimony to the effect that there was no evidence to the contrary and that the 2nd Respondent's unchallenged evidence is that he was given vacant possession of the land in issue. Consequently, she found that the 2nd Defendant was a bona fide purchaser for value without notice and that the 2nd Respondent has a superior right over the property in issue as against the Appellant and stated that the order for specific performance cannot succeed and was accordingly dismissed. 4.0 THE APPEAL 4.1 Dissatisfied with the Judgment of the Court below, the Appellant filed a Notice and Memorandum of Appeal on 22nd June 2023, advancing three (3) grounds of appeal, namely; i. The learned trial Judge erred in law and fact when she declined to make an Order for Specific performance in favour of the Appellant against the 1st Respondent to transfer the proposed subdivision of Lot 33, Silwili Settlement Scheme, Pemba, Southern Province, to the Appellant despite having made a finding off act that the Appellant and the 1st Respondent had a valid contract of sale; ii. The Court below erred in law and fact when it held that the 2nd Respondent had a superior right to the subject property known as J7 Subdivision A of Lot 33 Silwili Settlement Scheme, Pemba, as against the Appellant despite the 2nd Respondent being the second purchaser with no Certificate of Title; and iii. The court below erred in law and fact when it held that the 2nd Respondent was a bona fide purchaser for value without notice when the 2nd Respondent does not possess any Certificate of Title in respect of the land. 5.0 APPELLANT'S ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 We have duly noted the Appellant's Heads of Argument filed on 18th August 2023. 6.0 THE 2nd RESPONDENT'S CROSS APPEAL 6.1 The 2 nd Respondent filed its cross appeal on 7th July 2023. 7.0 THE 15 RESPONDENT'S ARGUMENTS OPPOSING THE APPEAL T 7.1 We have noted the p t Respondent's Arguments filed on 19th September 2023. 8.0 THE 2No RESPONDENT'S SUBMISSIONS 8.1 We have noted that the 2nd Respondent did file his submissions on 22nd September 2023. J8 9.0 THE APPELLANT'S ARGUMENTS IN REPLY 9.1 We have equally noted the Appellant's Arguments in Reply filed on 10th October 2023 and 16th January 2024 which we will not recast here, save as addressed below. Counsel Nyirenda failed to tender an explanation for the two sets of arguments in reply filed on different dates. 9.2 For the position we have finally taken, there is no value in re-stating the arguments of the Parties. 10.0 THE HEARING 10.1 At the hearing, Counsel placed reliance on their respective heads of argument and made oral submissions to augment their arguments in support of their respective positions. 11.0 ANALYSIS AND DECISION OF THE COURT 11.1 We have carefully considered the grounds of appeal reproduced in paragraph 4 above, the impugned Judgment, and the arguments and submissions of the Parties. 11.2 It is clear that the only issue for examination in this appeal, is the inherent power of the Court to raise a point of law where the same was not raised in the lower Court or on appeal, as it is a matter of jurisdiction and cannot simply be swept aside for not having been canvassed. The converse position being that we simply ignore the issue for not having been raised and proceed J9 to deal with the ill-fated appeal on its merits, a position so untenable that no reasonably minded Court can take that approach. 11.3 There are several cases that speak to the fact that an issue of jurisdiction can be raised at any stage of the proceedings, even if the point was not raised in the Court below. A case in point is the decision of the Supreme Court in the case of Aristogerasiomos Vangelatos and Another v Metro Investments Limited 1 . 11.4 The term 'Jurisdiction' was aptly described by the Supreme Court in the case of Zambia Revenue Authority v Professional Insurance Corporation Limited2 "as the gateway to the temple ofj ustice, and without it there would be no basis for continuing with the proceedings." 11.5 Inherent in an adversarial court system like ours, is the principle that the Court should not descend into the arena of the disputing parties. A much quoted proverb "a Judge, like Ceasar's wife must be above suspicion" is used as an analogy to reflect on the behavior of public figures. The reason for this is that it prevents the neutral robe of impartiality from being called into question. A counterbalance to this principle is the principle that a Judge can raise issues suo moto but must allow parties to address it, regardless of how clear the matter is in the mind of the Judge. 11.6 Further in our examination of this issue, we take comfort in the inherent power of the Court under section 24 {1) of the Court of Appeal Act. The relevant sub-section provides as follows: "The Court may, on the hearing of an appeal in a civil matter JlO (a ) confirm, vary, amend, or set aside the judgment appealed against or give judgment as the case may require; (emphasis is ours) 11.7 We are therefore of the settled view that the Court can suo moto proceed to deal with the appeal by raising an issue of jurisdiction where the same has not been raised in the lower Court or on appeal. 11.8 At the hearing of the appeal, we raised the issue of jurisdiction and invited Counsel to address us on the same. We referred Counsel to page 137 of the Record of Appeal being the Order of Appointment of the Administrator of Canaan Simaambo Mweetwa, the 2nd Respondent in this matter, as Administrator of the estate of the late Jameson Hamooya. This Order was granted on 11th July 2014, by Hamaundu Local Court. 11.9 For their part, Counsel were visibly at pains to speak to the issue and fumbled their way citing section 14 of the High Court Act2 which, according to Counsel Nyirenda, gave the lower Court the power to proceed to hear claims relating to disputes over land where the remedy being sought was specific performance. Counsel Tembo attempted to canvass the position that the Local Court may have enjoyed jurisdiction to deal with the estate in 2014 when the cause of action accrued. 11.10 What is glaringly obvious by its very omission, is that the record lacks evidence of an Order of the High Court appointing the Administrator to handle the deceased 's property in question. 11.11 Section 43 of the Intestate Succession Act4, provides the jurisdiction of courts in matters relating to succession and it states as follows: Jll "43. (1) The High Court shall have jurisdiction in matters relating to succession. (2) A local court shall have and may exercise jurisdiction in matters relating to succession if the value of the estate does not exceed fifty kwacha. (3) In matters relating to succession, a subordinate court of the first, second or third class shall, within the territorial limits of its jurisdiction, have jurisdiction to entertain any application if the value of the estate does not exceed one hundred thousand kwacha." 11.12 Additionally, the Supreme Court addressed Section 43(2) of The Intestate Succession Act 4 in the case of James Onwuka v Joyce Siandwazi Reid and 3 Others 3 in which the Court stated as follows: "We wish to state in passing even though the point was not argued, that under section 43 (2) of the Intestate Succession Act Cap 59, the appointment of the administratrix in relation to the estate in general would have been invalid as the Local Courts jurisdiction is limited to KS0.00.11 11.13 Based on the above authorities, we are of the considered view, that in the absence of an Order of appointment duly issued by the High Court, the administrator lacked the authority to have sold the property to begin with. We say so on the basis that the jurisdiction of the Local Court in succession matters is restricted to handling estates valued at no more than Fifty Kwacha. From the evidence before us, we have noted the purchase price of the land in question to the Appellant was KlOO, 000 to be paid in 3 J12 installments, and was K120, 000 to the 2nd Respondent. We can safely state that there can be no doubt that the value of the property was in excess of Fifty Kwacha. 11.14 We have had occasion to analyze the case of Charity Oparoacha v Winfrida Murambiwa 4 which highlighted two significant issues; the definition of who is a dependent and the jurisdiction of the Local Court. The second issue is of relevance to the present case. With regard to the issue of jurisdiction, the Court relied on section 43(2) of the Act 4 which limits the jurisdiction of the Local Court in matters of succession to an estate whose value does not exceed Fifty Kwacha. It was clear to the Court that this provision was enacted at a time when the Kwacha had more value and that going by the current trends very few, if any estates, would fall below the value of Fifty Kwacha. It was however on record in the cited case of Charity Oparoacha4, that the deceased's estate had property within and outside Zambia, which included real property. It was evident that the value of the deceased's estate went beyond the jurisdiction of the Local Court. The Court therefore upheld the decision of the lower court in finding the appointment of the appellant as administrator of the estate of the deceased null and void and consequently cancelled the Order of appointment post facto. 11.15 In the present case, given that the estate exceeds the value, it is evident that the administrator could not validly use the Order of appointment from the Local Court as seen on page 137 of the Record of Appeal, to represent the deceased's interests in any proceedings dealing with property or assets. J13 11.16 It may safely be argued that there is no estate in the Republic which will fall below the threshold of Fifty Kwacha. However, our hands are tied as that is the state of the law currently. We can do no better than call on the lawmakers to urgently take steps as appropriate. The Supreme Court in the cited case of James Onwuka 3 stated as follows: "Section 43 (2) may seem archaic given the fact that there is hardly any estate in Zambia worth KS0.00 but it is nevertheless the law for the time being in force. We are aware that the majority of estates in Zambia are administered by facilitation of letters of administration given by the Local Courts. There is therefore urgent need for the relevant authorities to take necessary steps to amend section 43 to the Intestate Succession Act so as to increase the jurisdiction of the Local Courts in relation to estates." 11.17 We shall not speak to the misguided positions taken by Counsel save to regret the waste of judicial time and energy both of the lower Court and this Court in dealing with and pronouncing on matters where the lower Court was completely robbed of jurisdiction to hear the matter. The decision of the lower Court to move ahead to determine the matter did not, and does not, ipso facto, operate to confer authority on the lower Court and indeed this Court, to consider and decide the present appeal. 11.18 It is trite, and the law is settled that any orders made in the absence of jurisdiction, however packaged, are equally null and void. Numerous authorities abound on the issue of jurisdiction, and we make reference to several celebrated decisions of the Supreme Court such as the case of J14 Antonio Ventriglia and Another v Finsbury Investments Limited5 and JCN Holdings Limited v Development Bank of Zambia6 where the Court pronounced as follows: "It is clear from the Chikuta and New Plast Industries cases that if a court has no jurisdiction to hear and determine a matter, it cannot make any lawful orders or grant any remedies sought by a party to that matter." 11.19 The effect of a judgment pronounced in such circumstances, is the inescapable and inevitable conclusion that the said Judgment be set aside. We adopt the English translation of the latin expression "out of nothing, comes nothing" or the latin maxim nihil dot qui non habet (He gives nothing who has nothing). 11.20 We agree fully with the Kenyan Court of Appeal in its observation in the case of Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited 7 that: "jurisdiction is everything (and that) without it, a court has no power to make one more step." We are totally on board with the Court's further observation in the same case that: "where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. .. " JlS 11.21 As a result, the judgment of the lower Court is set aside and the appeal and cross appeal dismissed. In the circumstances of the case before us, the justice of the matter demands that Parties bear their own costs here, and in the lower Court. M. J. SIAVWAPA JUDGE PRESIDENT A.M. BANDA-BOBO A.N. PATEL S.C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J16