Anne Mutale v Eqstra Zambia Limited and Ors (APPEAL No. 54/2023) (20 June 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 54/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) ANNE MUTALE APPELLANT, AND EQSTRA ZAMBIA LIMITED RESPONDENT KAPESIKA ENTERPRISES LIMITED FIRST PARTY ( 1 •t Defendant in High Court) KAPEMBWA SIKAZWE SECOND PARTY (2nd Defendant in High Court) GRANDWAY INVESTMENTS LIMITED THIRD PARTY (l•t Claimant) YOSEVA MONGA FOURTH PARTY (2nd Claimant) MOSES MONGA FIFTH PARTY (3rd Claimant) CORAM: Kondolo S.C., Majula and Banda-Bobo, JJA On: 7th May, 2024 and on 20th June, 2024 For the Appellant: Mr. R. Mwanza of Robert and Partners For the Respondents: Ms. S. Zulu of Theotis Mutemi Legal Practitioners For ist & 2nd Party: Mr. F. Zulu of MSK Legal Practitioners For 3rd , 5th & 5th Party: N / A JUDGMENT Banda-Bobo, JA delivered the Judgment of the Court. J1 Cases referred to: 1. Morris v Beardmore (1980) 71 CR APP 256 2. African Banking Corporation v Mubende Country· Lodge Limited (Appeal No. 116 of 2016) 3. Robson & Another v Hallet (1967) 2 QB 939 4. Nevers Mumba v Muhabi Lungu (Appeal No.200/ 2014) 5. Mususu Kalenga v Richmans Money Lenders Enterprise (Appeal No. 68 of2 002) 6. Kafuka v Mundia (Appeal No.BO of 2012) 7. Water Resources Management Authority and Chimsoro Farms Limited and 18 Others (AppealNo.24 of2021) 8. Attorney General v The Law Association (Appeal No, 199 of 2006 SCZ No.3 of 2006) 9. Betty Chizyuka vFinanceBankZambiaLimited (CAZAppeal 137of2019) 10. Masauso Zulu v Avondale Housing Project (1982) Z.R. 172 11. NewPlast Industries v The Commissioner of Lands & Attorney General (SCZ Judgment No.8 of 2005) 12. Philip Mhango V Dorothy Ngulube And Ors (1983) Z.R. 61 (S.C.) Legislation and Other Works referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia; 2. The Protection of Fundamental Rights Rules Statutory Instrument No.156 of 1969; 3. The Constitution of Zambia Act Chapter 1 of the Laws of Zambia; 4. Court of Appeal Rules, Act No. 7 of 2016 of the Laws of Zambia. 5. The Supreme Court Rules (White Book}, 1999 Edition 1. 0. INTRODUCTION 1.1. This is an appeal against the Ruling of the Honourable Justice C. Lombe Phiri delivered in the High Court for Zambia on 21st November, 2022. 2.0. BRIEF BACKGROUND 2.1. This appeal stems from Interpleader proceedings initiated in the High Court by the Sheriff of Zambia, in which the 4th Claimant in J2 the High Court proceedings (the Appellant) filed a Notice of Claim on April 19, 2021, for household goods that were seized from Subdivision P27 of Farm 2059 Lusaka on April 14, 2021. 2.2. In the Interpleader proceedings in the High Court, the Respondent, First Party, and Second Party were involved in an Arbitration. On August 16, 2019, the Arbitral Tribunal found for the Respondent. The First and Second Party were directed to pay the Appellant the sum of ZMW3,613,736.70 within 14 days of collecting the Award from both parties. The First and Second Parties were also ordered to pay the Respondent's legal fees and Arbitration costs. The Respondent registered the Arbitral Tribunal's Final Award in an attempt to enforce it against the First and Second Parties. 2.3. The High Court registered the Arbitral Tribunal's Final Award on 15th November 2019. The Sheriff of Zambia executed a writ offifa issued by the Respondent seizing various household goods and th motor vehicles from subdivision P27 of Farm 2059 Lusaka on 14 April, 2021. J3 2.4. The Appellant together with three others caused to be issued a Notice of Claim on 19th April 2021 which halted the execution of the writ of fifa . 2.5. On April 14, 2022, the Sheriff of Zambia commenced interpleader proceedings in the High Court. In these proceedings, the Appellant claimed household goods that had been taken from Subdivision P27 of Farm 2059 Lusaka. 2.6. The Respondent had hired a private investigator to find the whereabouts of the Defendants, and the investigator filed an affidavit in the High Court. The Respondent filed an additional affidavit in response, displaying conveyance documents that were summoned by the Court pertaining to the levied property. 3.0. DECISION OF THE LOWER COURT 3.1. The High Court delivered its Ruling on 21st November 2022 dismissing the Appellant's claim. The learned Judge in the Court below established that the Court, during Interpleader proceedings should be able to establish the claim of ownership of the seized property. 3.2. The learned Judge found that the property in question was originally owned by Mr. and Mrs. Kapembwa Sikazwe, Managing J4 Director of Kapesika Enterprises. The couple later requested that ownership be transferred to an organization called Nitim Trust. The learned Judge determined that Kapembwa Sikazwe was a trustee of Nitim Trust. 3.3. The learned Judge came to the conclusion that up until the day after the seizure of the goods, the Appellant did not have any interest in the property. Further, that it was manifestly apparent that the property actually belonged to the Defendant, 2nd 3.4. She held that it was not clear in what capacity the Appellant resided at the premises where the execution was levied but that the property belonged to the 2nd Defendant and his wife. 3.5. She found that there was no documentary evidence adduced to support the claim that the Appellant resided in the premises from 2017 until the date of execution. 3.6. The learned Judge found no evidence to refute the 2nd Defendant and his wife's claim that the property was always theirs. She thought it peculiar because, the Defendant's mother-in-law 2nd was there during the execution and then the Appellant appeared the next day to claim ownership. According to her, the only plausible conclusion that could be made was that the Appellant, JS who was present at the execution of the 2nd defendant, was the mother-in-law of the latter. She had the chance to assert her claim right away, but she chose not to. Having been present, she had the option to file a claim immediately but did not. 3. 7. In view of the foregoing, the learned Judge found that the Appellant had failed to satisfy the Court that she was the owner of the goods that were seized. She found that the appellant's claim failed and that the Respondent was properly entitled to the seized goods in the writ of fifa. 4.0. THE APPEAL 4.1. The Appellant, dissatisfied with the Ruling filed a Notice of Appeal fronting five grounds. However, grounds 2, 3 and 4 were withdrawn, leaving only grounds 1 and 5. These shall now appear as grounds 1 and 2 and are couched as follows:- (lJ. That the Court erred in law and/act in determining that the 1st Respondent was properly entitled to the seized goods in the Writ of Fifa despite the admitted illegal forcible entry; (2). The Court below erred in law and fact in relying on the fact that the Appellant did not immediately lay claim to J6 the seized goods as owner to establish that the goods did not belong to the Appellant. 5.0. ARGUMENTS IN SUPPORT. 5.1. Counsel for the Appellant filed heads of argument on 29th August 2023, and submitted that the gravamen of ground one was that the assistant Sheriff was not entitled to seize goods from the Appellants premises through forcible entry as admitted in evidence. He argued that in casu, police officers admitted to have been deployed and that this was void in law. He contended that the Court below ignored the evidence of forcible entry and the employment of armed police to access and seize the goods at the Appellant's house. 5.2. It was argued that the assistant sheriff or the Respondent made the Court believe that the seizure was anchored on the understanding that the premises the goods were seized from were for the Second Party, which according to Counsel, was far from the truth. 5.3. He argued that the action of forcibly se1z1ng goods at the Appellants premises was against the law as per Order 45 Rule 1 Subrule 11 of the Rules of the Supreme Court. J7 5.4. Counsel referred to a number of authorities including the case of Morris v Beardmore1 where the Court held that: "A person having been told to leave is now under a duty to withdraw from the property with all due reasonable speed and failure to do so he is not thereafter acting in the execution of his duty and becomes a trespasser with any subsequent levy made being invalid and attracts a liability under a claim for damages." 5.5. Counsel contended that in casu, the assistant sheriff having executed the writ of fifa through forcible entry rendered such enforcement null and void and the seized goods must be released. He prayed that this ground of appeal should be upheld and the ruling on the interpleader set aside with costs. 5.6. Under ground two, it was Counsel's contention that reliance by the Court below on the fact that the Appellant did not immediately make claim to the seized goods as owner, as part of the basis to establish that the seized goods did not belong to the Appellant, was legally flawed. 5. 7. He cited Order 17 Rules of the Supreme Court, and submitted that for a claim to be made on any goods or chattels, it has to be J8 made after the goods have been taken. Further, that the formal way to lay such claim is to file a Notice of Claim which the Appellant did on the 19th April 2021 as per pages 19-21 of the record of appeal. He argued that the law does not provide a time frame within which to file a Notice of Claim. He prayed that this Court upholds the appeal and sets aside the Ruling on Interpleader with costs. 6.0. ARGUMENTS IN OPPOSITION 6.1. Counsel for the Respondent filed heads of arguments on the 29th September 2022, and submitted in ground one that this ground of appeal was misplaced because the Court did not make any determination to the effect that the Respondent was properly entitled to the seized goods in the Writ of Fifa despite the purported admitted forcible entry. 6.2. She submitted that the ground of appeal shows a misunderstanding by the Appellant of not only the Ruling of the High Court, but also the law on Interpleader. Counsel submitted that the Court observed that the Appellant had failed to satisfy the Court that she was the owner of the goods that were seized. She contended that there was no evidence by the Appellant to rebut J9 the evidence adduced to show that the property had always belonged to the Party. 2nd 6.3. Counsel referred to the case of African Banking Corporation Zambia v Mubende Country Lodge Limited2·, to show that the interpleader proceedings concern themselves with proof of ownership of property seized in execution of a judgment and not whether entry used to seize the property was forcible or not. She noted that the authorities used by the Appellant on forcible entry results in execution being void and a claim for damages as opposed to defeating interpleader proceedings which were brought following the Appellant filing a notice of claim to goods seized in execution. 6.4. Counsel noted that the record of appeal at page 238 shows that the security guards at the premises fired gunshots causing the Bailiffs who had used minimal force to fear for their lives and call the police officers. 6.5. Further, Counsel submitted that the Appellant did not raise the issue of forcible entry in the affidavits and therefore raising on appeal, a point which they did not raise in the Court below, was wrong. JlO 6.6. As regards the issue to be determined in interpleader proceedings which is ownership of the property and not the means which the Sheriff used to enter the premises, Counsel referred to Order 45 Rule 1 Subrule 11 of the Rules of the Supreme Court of England 1965, 1999 Edition which states that: "Where the sheriff sells goods in the possession of the Judgment debtor which he has seized under an execution without any claim having been made to such goods, the Sheriff is protected from any liability." 6.7. Counsel submitted that the above authority does not apply in the present case as the goods in question have not been sold. Further, counsel contented that the case relied on by the Appellant of Robson & Another v Hallet3 was distinguishable from the present case, because the facts in that case were that the police officers called at the house of the defendants while investigating criminal offences, whereas the seizure by the sheriff of Zambia in this matter was on the authority of a writ of fifa in civil proceedings, therefore considerations were different. 6.8. Counsel submitted that the lower Court was on firm footing when it decided, based on the evidence before it, that the Appellant had Jll not proven ownership of the seized property on a balance of probabilities. It was Counsel's submission that the issue relating to forced entry as alleged by the Appellant in her heads of arguments were not issues that were subject of the interpleader proceedings and as such the Appellant was precluded from raising an appeal that borders on issues that were outside of the realms of interpleader proceedings. 6.9. Counsel submitted that, if the Appellant wanted to challenge the execution process or the validity of the said seizure, there was a procedure to follow in the Court below which she did not do. She submitted that the Appellant could not challenge the manner in which execution was levied through an appeal and as such, she contended that this ground of appeal ought to be dismissed. 6.10. Further, Counsel referred to the case of Mususu Kalenga v Richmans Money Lenders Enterprise5 on the principle that an Appellant cannot appeal on a matter that was not raised in the Court below. Counsel argued that the writ of fifa charged the Sheriff of Zambia to levy execution at Plot 08-329 / 8536 Chilimbulu Road and Plot No.1100, 1st Street Ibex Hill or anywhere else within the jurisdiction where the goods or chattels J12 of the aforesaid may be found. Counsel argued that this empowered the bailiff to levy execution in Chaminuka. 6.11. Under ground two, Counsel submitted that the Court below did not err in law or in fact when it relied on the Appellant's failure to claim ownership of the seized property on the date of execution. Counsel pointed out that page 18 of the record of appeal reveals that the Court below made a finding of fact that the Appellant was present at the premises, at the time of execution. Further, that it was the Court's finding that the Appellant, having been present at the scene of execution on 14th April 2021, should have immediately laid claim to the goods seized by the Sheriff from the house, but she failed to do so. Instead, the evidence shows that the Appellant was calling the 2nd Party to request for location of the keys for the cars which were seized. 6.12. It was Counsel's further submission that the Respondent has from as far back as 30th April 2021 been requesting for proof of ownership of the household goods which were seized, as per page 81 of the record of appeal, but that no such proof was furnished. Further, that because the Appellant had no proof of ownership to the goods, she waited until she colluded with the 2nd Party and J13 processed title in her name to file an opposition in 2022 stating that she was the owner to the property. 6.13. Counsel submitted that the Appellant was at subdivision P27 of Farm 2059 Lusaka on the date of execution. She made no claim to the household goods while they were being loaded on the motor vehicle. Counsel submitted that ground two should be dismissed on the strength of the arguments and authorities. 7.0. HEARING 7.1 The matter was heard on 7th May, 2024. It was at the hearing that Ms. Zulu pointed out that infact, grounds 2, 3 and 4 had been withdrawn by way of an Ex-parte order granted by a single Judge of this Court. Counsel for the appellant, Mr. Mwanza conceded that that was the position and asked us to only consider grounds one (1) and five (5). Grounds 2, 3 and 4 were thus expunged. We have since renumbered ground five (5) as ground two (2) in this appeal. 7 .2 Substantively, Mr. Mwanza relied on the appellant's heads of argument, filed on 3rd March, 2023, while Ms. Zulu relied on the heads of argument filed on 29th September, 2023. Mr. Zulu indicated that they did not file heads of argument. J14 8.0. DECISION OF THIS COURT 8.1. We have considered the appeal together with the arguments in the Appellant's and the Respondent's Heads of Argument and the authorities cited. We have also considered the Ruling appealed against. 8.2. The main issue for determination in this matter is whether the Appellant is the rightful owner of the goods seized by the undersheriff. 8.3. In the first ground of appeal, the Appellant contends that the undersheriff was not entitled to seize goods from the Appellant's premises through forcible entry. 8.4. On the other hand, the Respondent contends that the law on interpleader proceedings deals with proof of ownership of property seized in execution of a Judgment and not whether forcible entry was used to seize the goods. 8.5. In addressing this ground of appeal, we are guided by the case of African Banking Corporation v Mubende Country Lodge Limited (Supra) where the Supreme Court addressed its mind to what interpleader proceedings are, and where they stated at page J24 as follows: J15 "We have stated the subject matter in dispute interpleader proceedings, are a mechanism employed by a disinterested stakeholder, the Sheriff of Zambia to be specific to facilitate litigation of ownership of property seized by the Sheriff in execution of a Judgment when an interested party lays a claim to such property. Therefore, the essence ofi nterpleader proceedings is precisely that and no more." 8. 6. In the case of Betty Chizyuka v Finance Bank Zambia Limited10this court observed as follows: "From the above, it can be seen that when the 4th Appellant, as Claimant, launched interp leader proceedings under Cause No. 2012/HPC/0675, it was restricted to only laying a claim to property that had been seized. This is because interpleader proceedings do not extend to the claiming of other reliefs such as compensation or damages arising from a wrongful execution of a Writ of Possession. Therefore, there were no other means available to the 4th Appellant to seek relief for whatever damages it may have suffered under the interpleader proceedings other than to launch a separate J16 action as its locus standi in the earlier cause was restricted to filing a notice of claim for the so le purpose of triggering interpleader proceedings." (emphasis by this court) 8.7. A perusal of the undersheriff's evidence on page 238 of the record of appeal reveals that the Sheriff had initially used minimal force to enter into the premises until gun shots were fired and that is when the Bailiffs called for police backup as they feared for their lives. 8.8. In our view, this use of force was justifiable having heard gunshots fired. Further, we are fortified as was held in the African Banking Corporation2 Case that the purpose of an interpleader proceeding is to ascertain the rightful owner to the goods or property that have been seized. We therefore opine that the Appellant should have launched a separate matter on the issue of forcible entry as the matter before the learned judge was restricted to the interpleader proceedings. Further, our view is that there was justifiable force used because gunshots had been fired. J17 8.9. We have also combed through the record of appeal and note that the Appellant did not raise the issue of forcible entry in the affidavits before Court but that this evidence was led by the undersheriff during cross examination. 8. 10. Further, the parties agreed that the U ndersheriff would be cross examined. The Appellant having had the opportunity to have cross examined the undersheriff, cannot argue that his evidence showed that he was not a disinterested party. According to the explanatory note above, the undersheriff has no claim on the property and no interest in the judgment debt. 8.11. It is also evident that the Court below was aware that where the Sheriff had laid evidence before court, no prejudice would be occasioned on any party in their being allowed to lay before the Court such evidence. This ground is void of merit and is dismissed. 8.12. In arguing ground two, the argument by the appellant is that the court was wrong to rely on the alleged fact that the appellant did not immediately lay claim to the seized goods as one point to support the finding that the seized goods did not belong to the appellant. J18 8.13. Our view is that the appellant seeks to upset the findings of fact found by the lower court. In a plethora of cases, it has been guided on when an appellate court can safely upset the findings of fact. 8.14.In the case of Philip Mhango V Dorothy Ngulube And Ors13 the Supreme Court held that: "The court will not reverse findings off act made by a trial judge, unless it is satisfied that the findings in question were either perverse or made in the absence ofa ny relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make." 8.15. On the basis of the evidence on record, we opine that having found that the Court was on firm footing in ground one, the Appellant failed to establish ownership of the seized goods by her failure to produce evidence proving that she was the owner. We believe that the learned Judge made an accurate finding of fact when she concluded that the Appellant had not quickly claimed ownership of the seized goods. Since we are of the view that the relevant findings were not erroneous, that no pertinent J19 evidence was lacking, or that the facts were misunderstood, we believe that this is not a matter in which we can reverse the lower court's findings of fact. We find that this ground lacks merit and should be dismissed. 9.0. CONCLUSION 9.1. For the reasons we have stated above, we should uphold the lower Court's decision. The appeal is dismissed with costs to the Respondent to be taxed in default of agreement. =-- "i.___ •...•..............••.••.••.......••..••.•••••••• M. M. KONDOLO S.C. COURT OF APPEAL JUDGE ····~ ·-················ B. M. A. M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J20