Nataliya Yakovlyeva v Isabel boag and Anor (2021/HN/220) (31 December 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2021/HN/220 AT THE DISTRICT REGISTRY .. ,~ 1" , HOLDEN AT NDOLA ~i· ··:· ":'.1:J·• · • : '-i \ \!'..;'. · (Civil Jurisdiction) 3 1 DEC 2025 ~. \ J BETWEEN ' · CIVIL-~>.-,•'!-;- l ·•,._ p NLIOI..A HI~;:,,.,;•,•! 1· ,/ --.. , ..Q ..Qo,>< ~OflC-4. !i~j: ___ ,. NATALIYA YAKOVLYEVA PLAINTIFF AND ISABELBOAG DEFENDANT ADMINISTRATOR GENERAL INTERESTED PARTY Before Honourable Mr. Justice D. Musonda For the Plaintiff: Mr. D. Tambulukani with Ms M. Musyani Messrs D.T. Legal Practitioners. For the Defendant: Mr.D. S. Libati of Messrs D.S Libati Legal Practitioners. For the Interested Party: Ms. S. T._M ambwe of Administrator Gener-al · CASES REFERRED TO: 1. Khalid Mohamed vs. The Attorney-General (1982) Z-R.49 J2 2. Wilson Masauso Zulu vs. Avondale Housing Project Ltd (1982) Z.R, 172 3. Sandton Civil Precinct (P1Y) Ltd vs. City ofJ ohannesburg and Anotherl, (458/ 2007) 4. David Mochochoko vs. The Prime Minister & Others6 CW/A PN/ 141/2020 5. R. vs. Inland Revenue Commissioners, Ex-parte National Federation of Self Employed and Small Businesses Limited (1982) AC 617 6. Frank Malichupa & Others vs Tanzania - Zambia Railways Authority (2008) Vol 2. Z.R. 112 7. Michael Cipriano vs. Glen Cove Lodge,{No. 1458 B.P.O.E, et al, Appellate Division of the Supreme Court of New York) 8. Kabwe vs. Kapasa(Appeal No. 35/2012) J3 1.0. INTRODUCTION. 1. 1. This judgment relates to a property known as House No. 15 Bwangalo Lane, Northrise, Ndola. The plaintiff was at all material times a tenant at the said house which belonged to the now deceased person Geoffrey Cooper who died on 5th June, 2013. 1.2. Following the death of Geoffrey Cooper, the property was assigned to the defendant through a deed of assent executed by Dilip Kumar Desai, the administrator of the deceased's estate. Mr. Dilip Kumar Desai was duly appointed as administrator of the estate of the deceased in a non contentious probate action under short cause 2013/HN/318. 1.3. According to the plaintiff, the subject property was fraudulently assigned to the defendant as she was not a beneficiary of the estate of the deceased. The plaintiff argued that since there are no known beneficiaries of the estate of the J4 deceased, the suit property should vest in the Administrator General. 1.4. The defendant disputed the claim stating that the said house was properly assigned to her in her capacity as the deceased's partner of more than 25 years. 1.5. In view of the rival claims, the plaintiff took out a writ of summons on 27th August, 2021 and claimed, inter alia, for the following reliefs: (i) An Order vesting Property No. F /748/ AR6/3 also known as House No. 15 Bwangalo Lane, Ndola in the Administrator General. (ii) An Order cancelling certificate of title for property No. F/748/AR6/3 and issued in the names of the defendant. (iii) In the alternative, if the beneficiaries of the estate of the late Geoffrey Cooper cannot be JS located the property 1n issue be sold to the plaintiff being the current sitting tenant. 2.0 AVERMENTS IN THE STATEMENT OF CLAIM 2.1 The plaintiffs averments m the accompanymg statement of claim were that she occupied House No. 15 Bwangalo Lane, Ndola as a tenant of Geoffrey Cooper (now deceased) from the year 2013. 2.2 Subsequent to the deceased's death on 5th June, 2013, the defendant fraudulently obtained title deeds to the suit property in her names, which fact ·has caused the plaintiff concern as regards ownership of the subject property as the deceased's estate did not have known beneficiaries in Zambia or elsewhere in the world. 2. 3 The following were given as particulars of fraud:- J6 (i) The defendant was a foreign national and as such, could not own real property. (ii) The Intestate Succession Act which was relied on to pass the property to the defendant did not apply to the defendant. (iii) The defendant was a mere girlfriend to the late Geoffrey Cooper and at the time the defendant was presenting herself to the Registrar, she falsely represented to the Registrar of Ministry of Lands as a widow and/ or wife of the late Geoffrey Cooper. (iv) The defendant could not inherit the property as the she was not a beneficiary under the deceased's estate. (v) At the time of obtaining the certificate of title, the defendant was purporting to reside at House No. 15 Bwangalo Lane when the defendant had never lived at the said address. J7 (vi) The residence permit, if any, used to obtain the certificate of title was not valid as the defendant at the time of her residing with the late Geoffrey Cooper merely held an entry permit which permit was phased out. (vii) At the time the plaintiff conducted a search at the Ministry of Lands and Natural Resources on the property in the year 201 7, she discovered that the defendant did not have or hold a certificate of title to the property and the same was only produced on 12th July, 2020 long after proceedings were instituted under the consolidated cause 2018/HN/257 and 2018/HN/296. (viii) According to records held by the Immigration Office, the defendant's last date of entry in Zambia was 30th April, 2014 and there has been no record of her exiting the Country from that date. :: JS (iv) The defendant had never been in Zambia or heard of since the year 2013 or 2014 when she was relocated to the United Kingdom by her daughter Karen Compton. 3.0 AVERMENTS IN THE DEFENDANT'S DEFENCE AND COUNTER-CLAIM 3.1 The defendant entered appearance and filed a defence to the plaintiffs claims on 16th November, 2021. 3.2 The defendant averred that House No. 15, Bwangalo Lane, Nd ola was initially owned by the late Geoffrey Cooper which he bequeathed to the defendant, the decease's partner of 25 years, through his Will and Testament dated 12th April, 2011. 3.3 The Will was, however, not proved as it was discovered that it was defective and this necessitated an application for grant of letters of administration to one Dilip Kumar Desai who, through a deed of assent, assigned the property to defendant. J9 The defendant obtained a certificate of title in her names on 16th June, 2015. 3.4 The defendant added that she was a resident of Zambia holding permit number IM.B.3379/64. 3.5 It was averred that, this Court having granted letters of administration to Dilip Kumah Desai on 2nd May, 2015 under short cause No. 2013/HN/318 which Order was not challenged by the plaintiff, the property could only vest in the interested party on the strength of the letters of administration which the defendant should have applied for within a reasonable time after the death of the deceased. 3.6 The defendant averred further that there is no law mandating the Court to Order that the subject property be sold to the plaint iff for being a tenant. 3.7 The defendant denied that the plaintiff was entitled to any of the reliefs sought in her plaint. JlO 3.7 In relation to the counter-claim, the defendant averred that the plaintiff had been in rental arrears and had been abusing the court process to escape liability to pay rentals. 3.8 In view thereof, the defendant averred that she has suffered embarrassment as the plaintiff had been fabricating events in relation to the estate of the late Geoffrey Cooper and blatantly telling lies to Government Departments, Law enforcement agencies and this Court. The defendant's claims therefore were as follows: (i) An Order that the plaintiff 1s indebted to the defendant for unpaid rentals for the period April, 2017 to November, 2021 in the total amount of $61, 600.00; (ii) An Order that the defendant is the legal owner of House No. 15 Bwangalo Lane, Ndola as evidenced by a certificate of title issued in the name of the defendant dated 16th June, 2015 being the rightful Jll beneficiary of the said house under the Will of the late Mr. Geoffrey Cooper that formed the basis of the grant of letters of administration; (iii) An Order of declaration that the plaintiff has abused the court process in consolidated cause No. 2018/HN/296 and the case in casu all in attempt to avoid paying rentals to the defendant and has thereby caused the defendant loss of the use of money, inconvenience, embarrassment and hefty legal fees; (iv) An Order that the plaintiff has also defrauded the State of income in the form of withholding tax by defaulting on rentals; (v) Damages for loss of income due to unpaid rentals; J12 4.0 AVERMENTS IN REPLY AND DEFENCE TO COUNTER CLAIM 4.1 The plaintiff filed into court her reply and defence to the counter-claim on 27th December, 2021. 4.2 In reply to the defendant's defence, the plaintiff essentially joined issue with the defendant with the defendant on her defence. The plaintiff added that the suit property was assigned to the defendant by way of a deed of assent and through a Will. The said Will was defective in material respects. 4.3 It was averred that the grant of a Court Order was not a licence to perpetuate illegalities or wrongful acts. The plaintiff denied suing the court process to protect her failure to pay rentals. To the contrary, it was averred that rentals were being paid into court under consolidated causes 2018/HN/257 and 2018/HN/296. J13 4.4 The plaintiff added that the application to appoint an administrator was for purposes of appointing someone to manage the estate. 4.5 In relation to the defence to the counter-claim, the plaintiff reiterated that she had been paying standard determined rent into court pending the identification of the rightful and lawful beneficiaries of the decease's estate. 5.0 AVERMENTS IN THE INTERESTED PARTY'S DEFENCE 5.1 The interested party entered appearance and settled a defence on 7th February, 2025. 5.2 The gist of the said defence was that the interested party could only have the suit property vested in its office by virtue of being administrator of the deceased's estate. 6.0 THE CASE FOR THE PLAINTIFF 6.1 The plaintiff testified in her own right as PWl and called no witnesses. Her witness statement filed into court on 31st March, J14 2025 revealed that she was a resident of House No. 15 Bwangalo Lane, the suit property, which she occupied 1n February, 2013 as a tenant. She was first executed a verbal lease agreement with the deceased, Geoffrey Cooper for unspecified period. Three months later, she executed a written lease agreement with one Karen Compton, the defendant's agent for a period of 1 year. The commencement date of the lease was 1st March, 2013 and it was to be determined by effluxion of time on 1st March, 2014. 6.2 The defendant was introduced to PWl as the deceased's girlfriend and she came to know Karen Compton as the defendant's daughter. She added that from the time she occupied the suit house, she was responsible for the maintenance of the property to keep it in good state and condition suitable for human habitation. She was, in addition, paying ground rates and this caused her concern as to who the owner of the suit property was. She was further worried because she did not know whether she was paying rentals to the right people or not. J15 6.3 This prompted her to make inquiries at Ministry of Lands where she was informed that there were some irregularities in the manner the certificate of title for the suit property was obtained in the names of the defendant. To her knowledge, there are no known beneficiaries to the estate of the late Geoffrey Cooper in Zambia or elsewhere in the world. The defendant to whom the suit property was assigned by way of deed of assent executed by one Dilip Kumar Desai who assumed the role of administrator of the deceased's estate, had been absent for a continuous period 6 months from Zambia or since 2013-2014 when she relocated to the United Kingdom. 6.4 It was PWl 's testimony that Dilip Kumar Desai could not by law assume the role of administrator of the estate of the deceased under the Intestate Succession Act because he was not a relative of the deceased. According to PW 1, the estate of the deceased is subject to the control of the Administrator General. She added that the grant of a court Order was not a licence to carry out fraudulent, wrongful, unlawful and illegal acts. Jl6 6. 5 PW 1 stated that the defendant was a mere girl friend of the deceased and as such, she could not inherit the property of the deceased as she was not a beneficiary under the estate. She complained that the defendant purported to be a resident of the suit house at the time she was getting the title deeds when she has never lived there. 6.6 She further complained that at the time of obtaining a certificate of title, the defendant held an entry permit which had been phased out. The defendant's last date of entry in Zambia was 30th April, 2014 and there were no records of her exiting the country from that date at the Immigration Office. 6.7 The deceased's Will was defective and as such, the defendant could not derive title from a defective instrument under Zambian law. She insisted that under the circumstances, it was justified for the Court to determine the lawful owner and beneficiaries of the suit property. J17 6. 8 It was PW l's further testimony that the consolidated matters under short cause 2018/HN/257 and 2018/HN/296 were for the determination of standard rent of K4, 500.00 which the plaintiff had been paying into court. 6.9 Under cross-examination, PWl conceded that she was given a notice to vacate the suit house and to pay outstanding rentals. The rentals at that time were UD$ 1,100.00 monthly. She conceded further that the lease mandated her to maintain the garden, swimming pool and the property in general. 6. 10 PW 1 explained that the deceased, Geoffrey Cooper passed away about three months to the execution of the lease. When referred to the document on page 7 of the defendant's bundle of documents, PWl confirmed that it was Isabel Mitchell Boag's Zambian residence permit carrying the number IM.B 3379/64. 6.11 She further conceded that Dilip Kumar Desai was appointed administrator of the estate of the late Geoffrey Cooper and she did not challenge that appointment. She explained that the J18 rentals were set by the court at K4, 500.00 per month. She confirmed that she had not paid any tax to the authorities. 6. 12 She further conceded that only when the Administrator General was appointed as administrator of the estate would he become such administrator. The administrator General was not appointed administrator of the estate of the deceased, Geoffrey Cooper. 6.13 In further cross-examination, PWI was not sure if the suit property could vest in the administrator general if only the administrator general was appointed administrator. 6.14 In re-examination, PWI explained that she was the one maintaining the property after Geoffrey Cooper died. She explained further that maintenance of the property under the lease agreement did not involve replacing water pumps and repairing cracks. She denied owing the defendant rentals. She stated that the investigative wings stopped her from paying rentals for the suit property. J19 6.15 That marked the close of the case for the plaintiff. The defendants' did not call any witnesses. At the close of the plaintiff's case, all the parties requested for time to file final written submissions. In arriving at the decision to follow, the submissions of the parties have been duly considered. 7.0 CONSIDERATION, ANALYSIS AND DECISION 7.1 I have considered the pleadings, the bundles of documents and the plaintiff's oral evidence. From the pleadings and the evidence on record, it is not in dispute that the plaintiff was a tenant at House No. 15 Bwangalo Lane, Ndola which she occupied in February, 2013. The lease did not specify the duration the plaintiff was to occupy the suit property. The said house belonged to Geoffrey Cooper who died in June, 2013. A death certificate exhibited on page 14 of the plaintiffs bundle of documents confirms the deceased's death. 7.2 It is further not in contention that following the deceased's death, an application for the grant of probate was attempted to be obtained on the basis of the deceased's Will dated 12th J20 April, 2011 exhibited on page 1 of the defendant's bundle of documents. However, probate could not be obtained on account that the Will was defective. 7.3 On 2nd May, 2014 letters of administration were granted to one Dilip Kumar Desai under short cause number 2013/HN/318. It is undeniable that a Notice was published in the Times of Zambia on 18th August, 2014 and no one showed up to claim an interest in the deceased's estate. That being the state of affairs, the suit property was bequeathed on the defendant as that was the intention of the deceased in his Will dated 12th April, 2011. The defendant, the holder of resident permit number IM. B. 3379/64, was described as the deceased's common law wife and a partner of 25 years in the deceased's Will. 7.4 Following that, the defendant executed a 12 months lease with the plaintiff for the suit property. The said lease was exhibited on page 3 of the defendant's bundle of documents. By that lease, the commencement date was 1st March, 2013 and the expiry date was 1st March, 2014. J21 7.5 The plaintiffs complaint in this matter was that there are no known beneficiaries of the estate of the deceased in Zambia or elsewhere in the world and as such, the title deeds to the suit property were fraudulently acquired in the 1st defendant's names. 7 .6 The sole question for determination in this matter, therefore, is whether the plaintiff has, on the evidence tendered, established, that she is entitled to the reliefs sought. 7. 7 The defendants did not call any witnesses at the hearing of the matter. But elicited evidence in favour of the counter claim through the cross-examination of PW 1. The question here is whether the counter claim has been established. 7.8 Therefore, both the plaintiff and defendant bear the burden of establishing this rival positive affirmations. J22 7. 9 The foregoing was underscored 1n the case of Khalid Mohamed vs. The Attorney-General1. In that case, the Court held that a plaintiff cannot always succeed whenever an opponent's defence has failed. The plaintiff still bears the duty to prove his case if he has to succeed. 7 .10 Similarly, the Supreme Court in the case of Wilson Masauso Zulu vs. Avondale Housing Project Ltd2 stated as follows: ". .. it is accepted that where a plaintiff alleges he has been wrongfully or unfairly dismissed, as indeed in any other case where he makes any allegations it is generally for him to prove these allegations. A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever, maybe said of the opponent's case". 7.13 It follows that whenever litigation exists, somebody must go with it. The plaintiff is the first to begin and if he does J23 nothing, he fails. If he makes a prima facie case and nothing is done to answer it, the defendant fails. 7.14 Before I determine the question I have set above, it is cardinal to consider the issue relating to locus standi which the defendant had raised in paragraph 40 of her defence. In that paragraph, the defendant averred that the plaintiff was a mere tenant and has no rights to the suit property beyond that of a tenant especially that the property is legally owned by the defendant. 7 .15 This assertion in my view raises the issue of locus standi in that it raises a question concerned with the sufficiency and directness of the plaintiffs interest in this suit for her to be accepted as a litigating party. Locus standi is an issue which needs to be determined preliminarily in a judicial process. In other words, the issue of locus standi has to be decided in limine before the merits of the matter. I will thus determine the issue of locus standi as a preliminary issue. J24 7.16 It is trite that the sufficiency of interests depends on the facts of each case hence there are no fixed rules. In the persuasive case of Sandton Civil Precinct (PTY) Ltd vs. City of Johannesburg and Another3 the issue of locus standi arose, , and the court took the following position which I entirely agree with for being good law: "As Harms JA has pointed out, while procedural, it also bears on substance. It concerns the sufficiency and directness of a litigant's interest in the proceedings which warrants his or her title to prosecute the claim asserted. .. While in a sense this is technical, and procedural, it also goes to the substance of the applicant's entitlement to come to the court. " 7 .17 Similarly in the case of David Mochochoko vs. The Prime Minister & Others4 it was correctly stated: , ''A litigant who institutes legal proceedings must set out his or her locus standi and prove it. Locus standi is both J25 procedural and substantive as the applicant must prove the directness of his interest to sue, and his interest in the relief sought. The onus, in a true sense, is upon him to prove his locus standi." 7 .18 In another case of R. vs. Inland Revenue Commissioners, Ex-parte National Federation of Self Employed and Small Businesses Limited,5 it was stated that locus standi is the ability of the party to demonstrate to the Court sufficient connection to and harm from the law and action challenged to support that party's participation in the case. 7. 19 The above cases lay out the principles of law required to establish locus standi. In all cases a party must allege sufficient facts to indicate that he has the necessary locus standi to institute the proceedings. Indeed, the test is whether the applicant has a direct personal interest in the matter to be considered "his cause". Whether a party has locus standi boils down to whether or not a party has a direct substantial J26 interest in the subject matter of the litigation. The test is undoubtedly whether the applicant has a direct personal interest in the suit to be considered "his cause". 7.20 In determining whether the parties have the necessary legal standing or locus standi in a matter, the court must have recourse to the ex f acie appearance of the founding pleadings. 7 .21 Of significance in this regard is the fact that the plaintiff occupies the suit property as a tenant. She has no proprietary interest in the suit property. Her interests and duties as such tenant do not extend to knowing how the property exchanged hands. Her worries relating to who she was paying rent for the suit property were taken care of when she sought the Court's Order to be paying rentals into court. 7.22 In this regard, I find that the plaintiff has not raised any direct interest in the subject-matter of the suit and making Orders in relation to the claims under (i) and (ii) would be tantamount to J27 making academic orders which Courts frown upon. I must mention that courts of law are not constituted for the discussion of academic questions, and they require the litigant to have not only an interest but also an interest not too remote which the plaintiff has failed to demonstrate in relation to claims above. 7.23 I now determine the alternative claim being, whether the suit property could be sold to the plaintiff being the current sitting tenant on account that the beneficiaries of the estate of the late Geoffrey Cooper had not been found. 7.24 The plaintiffs position as I understand it is that she should be offered to purchase the suit property as a sitting tenant if no beneficiary of the deceased's estate was found. The plaintiffs prayer is not tenable on the basis that the property has already been bequeathed on the beneficiary, the within defendant, by a legally appointed administrator of the estate of Godffrey Cooper. J28 7.25 This being the case, this court cannot order that the suit property be offered to the plaintiff to purchase because there is no law which compels the government or any person to sell property to another person. See the case of Frank Malichupa & Others vs Tanzania - Zambia Railways Authority6 • 7 .25 In relation to the right of first refusal as a sitting tenant, the court in the case of Michael Cipriano vs. Glen Cove Lodge7,(No. 1458 B.P.O.E, et al, Appellate Division of the Supreme Court of New York) stated that the right of first refusal can also be referred to as 'first option to buy', 'pre emptive right', 'right of pre-emption', 'first right of purchase'. In that case, the learned judge substantively found that, tenants could enjoy such a right by virtue of the general law and this could also be enforced by the contents of their rental agreements. That such right can be protected by ensuring that there is a condition in a contract or lease signed by the parties. J29 7. 26 Commenting on the aspect, it was held in the case of Kabwe vs. Kapasa8 that there is no law that can compel a vendor to sell , his property to a party that he is not willing to sell to, as the right to enter into contracts willingly is sacrosanct. In that case, the following observations were made by the Supreme Court: "As argued by Counsel for the appellant, the respondent was fighting for an offe r and the court had no power to order ZCCM to offer a house to the respondent. This is in line with the case of Frank Malichupa & Others vs. Tanzania-Zambia Railway Authority (2008) Vol.2 Z.R. 112, where we said that, there was no law which compels an unwilling person to sell his property to a sitting tenant. The behavior of ZCCM somewhat indicated that it was not willing to sell the house to the respondent despite him being in occupation of the house in issue. .. In this case, the respondent refused to vacate the house yet he had no offer and as we have already stated a court is not empowered to order anyone to make an offer." J30 7 .27 My perusal of the lease agreement executed between the plaintiff and the defendant reveals that the 'right of pre emption' or 'right of first refusal', was not part of the terms of the agreement signed between the parties, nor was there any law on which the plaintiff could rely to assert her purported right. 7. 28 In this regard, I find that the alternative remedy in the plaintiffs plaint has no merit as well. This is so because there is no law, constitutional or general, which compels an unwilling person to sell his property to a sitting tenant. 8.0 DECISION 8.1 In view of the reasons I have given above, I find that the plaintiff has failed to prove her claims against the defendants and I dismiss her case in toto. 8.2 I further find that the defendant's counter claim has merit. On the evidence, she is the lawful owner of the suit property and J31 therefore entitled to the reliefs claimed. The lease determined by effluxion of time on 1st March, 2014. The defendant is entitled to unpaid rentals up to 6th July, 2018 when payment of standard rent of ZMW 4 500 was Ordered. The defendant is at liberty to evict the plaintiff. Costs will follow the event. DELIVERED THIS 318 DAY OF DECEMBER, 2025 AT NDOLA. T