Margret Phiri v Richard Mbasela (2021/HP/ A025) (21 June 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2021/HP/ A025 AT THE PRINCIP HOLDEN AT LUS (Civil Jurisdiction) PR1Nc1PAL BETWEEN: MARGRET PHIRI GJSTRY·2 APPELLANT 0067,LUS AND RICHARD MBASELA RESPONDENT BEFORE THE HONOURABLE MRS. JUSTICE M. C. KOMBE For the Appellant In - Person For the Respondent No -Appearance. JUDGMENT Cases referred to: 1. Attorney General v. Paul Kayula (1983) Z.R 2. Samson Mbavu & others v. The People (1963-1964) N.R.L.R. 164 (C.A). 3. Wilson Masauso Zulu v. Avondale Housing Project Limited ( 1982) Z.R. 172 (S.C). 1. INTRODUCTION 1.1 This is an appeal against the decision of the learned Magistrate T.M_. Muleya in the Subordinate Court at Lusaka delivered on 8th April, 2021. 2. BACKGROUND 2 .1 This matter was originally commenced in the Kanyama Local Court where the Appellant sued the Respondent for reconciliation over land wherein she alleged that they had a dispute over a piece of land which the Respondent sold to her. The Local Court held that the reconciliation failed on the basis that the parties were bound by the agreement of sale and ordered the Appellant to stop the construction of the fence in the Respondent's yard. 2.2 Dissatisfied with the decision of the Local Court Magistrate dated 16th June, 2020, the Appellant appealed to the Subordinate Court. 2.3 In the Subordinate Court, the learned trial Magistrate heard the appeal de nova. She found that on the totality of the evidence adduced, there was overwhelming evidence to the effect that the one-meter piece of land in question was not part of the land which the Appellant purchased from the Respondent. The learned trial Magistrate therefore held that the Appellant had failed to prove her case against the Respondent on a balance of probabilities. 2 .4 It is this decision that the Appellant now assails. -J2- 3. GROUNDS OF APPEAL 3.1 The Appellant filed a Notice of Appeal on 30th June, 2021, advancing the following grounds of appeal as follows: 1. The Respondent obtained judgment in his favour fraudulently having brought a false witness before the Court in support of the owner of the piece of land measuring 1.3 metres in extent in which is at the boundary of the appellant's plot that is not in the premises of the Respondent. 2. The Respondent refused to acknowledge receipt of service of the affidavit in support of summons for stay of judgment pending appeal and therefore did not file ·the affidavit in opposition. 3. The Respondent did not attend the inter-parte hearing on 24th June, 2021 without informing the court of his absence after being served with the court order. 3.2 Based on the above grounds of appeal, the Appellant prayed to this Court to: i) Dismiss and/ or nullify the judgement obtained fraudulently by the Respondent and decide in her favour; ii) Consider what the Appellant argued in her favour in support for there was no affidavit in opposition filed by the Respondent; iii) Grant punitive and exemplary damages; iv) Interest; v) costs; -J3- vi) any relief the Court may deem fit. 4. APPELLANT'S HEADS OF ARGUMENTS 4.1 In the heads of arguments, the Appellant argued that the prime witness in the court below was aware of this matter as she shared the boundary to the west of her plot which he gave her due to compassion and measured 1.3 meters. That it was delineated from his Plot No. 157 /45. 4.2 It was argued that the Respondent brought in a false witness and he obtained a favorable judgment dated 8th April, 2021 which was later stayed by the court upon producing fresh evidence by the Appellant. 4.3 She relied on the case of Attorney General v. Paul Kayula ~ where it was held that: "Where no defence is entered by the Defendant, a Court may assume that no defence was possible." 4.4 She submitted that the Respondent did not file his defence or the affidavit in opposition to the appeal before the Court. 5. RESPONDENT'S ARGUMENTS 5.1 The Respondent did not file any heads of arguments in relation to the appeal. -J4- 6. HEARING 6 .1 At the hearing of the appeal, there was no appearance for the Respondent even though the record indicated that service of the Notice of hearing had been effected. I was therefore satisfied that the Respondent's absence was deliberate and I proceeded to hear the Appellant's case. 6.2 The Appellant submitted that her grievance was as per the grounds of appeal and asked the Court to consider the documents on the record. 6.3 In augmenting her arguments, she submitted that she bought the land in question from Richard Mbasela. At the time, they agreed that there should be a boundary but after building for a short while, the Respondent suggested that she stops the building as it was not making sense. 7. DECISION OF THE COURT 7 .1 I have carefully considered with the pleadings on record, evidence and authorities cited. 7 .2 I take cognizance of the fact that the Appellant appeared in person due to lack of funds to engage legal representation. -JS- 7 .3 This Court gave orders for directions on 31st May, 2022 on the filing of heads of arguments regarding the Notice of Appeal and Grounds of Appeal filed on 30th June, 2021. 7.4 In this regard, the Appellant filed heads of arguments on 30th June, 2022. I should mention from the outset that I found it difficult to comprehend the arguments filed by the Appellant. This is because the same did not address the judgment of the trial Magistrate but to a large extent addressed the issue of non- appearance by the Respondent in the lower court for the application for an order to stay the judgment, his failure to file an affidavit in opposition and also the purported appointment of an unqualified person, a Mr. Fredrick Chinsala by the Respondent. 7 .5 Be that as it may, I propose to deal with the grounds as indicated in the grounds of appeal filed on 30th June, 2021 as the issue regarding Mr. Fredrick Chinsala was not one of the grounds of appeal. 7 .6 In ground one, the Appellant contends that the Respondent obtained the judgment in his favour fraudulently as he brought a false witness. 7.7 The gist of the Appellant's arguments is that she is dissatisfied with the learned Magistrate's finding that the -J6- one-meter piece of land at the boundary of her plot belonged to the Respondent. 7 .8 I must state from the onset that in considering this appeal, I am reminded that the jurisdiction reposed in an appellate court to overturn a decision of a trial court on appeal is limited. Only in prescribed circumstances can an appellate court overturn the decision of a trial court that received the evidence from witnesses, observed demeanour and assessed their credibility. 7.9 In Samson Mbavu & Others v. The People 12 J Blagden, J.A. (as he then was), delivering the judgment of the Court of Appeal, laid out a number of decisions on the point and concisely stated the circumstances in which an appellate court could overturn the decision of a trial court. It must be shown that: "1. By reason of some non-direction or misdirection or otherwise, the judge erred in accepting theirevidence; 2. It unmistakably appears from the evidence itself, or from the unsatisfactory reasons given by the judge for accepting it, that he cannot have taken proper advantage of his having seen and -J7- heard the witnesses or 3. In so far as the judge has relied on manner and demeanour, that there are other circumstances which indicate that their evidence in not credible, as, for instance, if they have on some collateral matter deliberately given an untrue answer." 7.10 As I already stated, the learned Magistrate held that the one-meter space between the two houses was part of the Respondent's piece of land. 7 .11 The learned trial Magistrate conducted a site visit on 15th December, 2020, from which she made the following observations at page J4 of the judgment: "The Plaintiff's plot was measured in the presence of both the Plaintiff and the Defendant. When measured from the Defendant's house to the other end, the Plaintiff's plot was 9 meters long in width whilst the length of the plot was 30m. In her testimony, the Plaintiff told the court that the piece if land which she purchased from the Defendant was measuring 9m x 30m. however, the document marked MPl indicates that the land which the Plaintiff purchased from the Defendant measures Sm x 30m. Similarly, the Defendant testified that he sold land to the Plaintiff measuring Sm x 30m. The· document marked RMl -J8- equally clearly shows that the Defendant sold land to the Plaintiff measuring Sm x 30m." 7 .12 From the site visit conducted, the learned Magistrate found that the Appellant and Respondent's houses were adjacent to each other and that the one-meter piece of land was lying between the two houses. It was also observed that the part of the Respondent's house lay on the disputed one-meter piece of land. For this reason, she concluded that the disputed one- meter piece of land belonged to the Respondent as she did not see why any reasonable person would sell land within which his house was located. 7.13 It is therefore clear that learned Magistrate's finding that the piece of land in question belonged to the Respondent largely depended on the evidence of the Appellant and the Respondent and the site visit that she conducted. There is nowhere in the judgment of the court below where it is stated that weight was attached to the evidence of DW2, the Respondent's witness. 7 .14 Consequently, I find Appellant's contention that the Respondent brought in a false witness to obtain a favorable judgment to be misconceived as it lacks substance. -J9- 7 .15 The Appellant in her arguments also contends that Brigadier General Idi Hachaanga whom she shared the boundary to the west of her plot delineated a piece of land measuring 1.3 meters to her and was subpoenaed to appear before the trial Court. 7 .16 From what I have discerned from the record, the subpoena directed that the witness appears before the trial court on 24th June, 2021. As at that date, judgment in this matter had already been delivered on 8th April, 2021. Thus, there is no record of evidence which was adduced by the said Mr. Hachaanga. 7 .1 7 It is well settled principle of law as espoused by the decision of the Supreme Court in Wilson Masauso Zulu v. Avondale Housing Project Limited 131 that: "The appellate court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts." 7 .18 I have carefully considered the evidence on record and I do not fault the learned trial Magistrate for arriving at the conclusion that the evidence was overwhelming that the -JlO- one-meter space in question was not part of the piece of land that the Appellant purchased from the Respondent. I therefore have no basis on which to interfere with the findings of the court below on grounds that they were either perverse or made in the absence of any relevant evidence or upon a misapprehension of facts. 7 .19 Regarding ground two and three, the Appellant attacks the failure by the Respondent to attend court in relation to the application for stay of judgment and also his failure to file an affidavit in opposition. 7 .20 I do not know how these grounds are related to the judgment delivered by the trial Magistrate dated 8th April, 2021 against which this appeal before this Court lies. 7 .21 If the Respondent did not appear, the trial Magistrate considered that issue and pr.oceeded in his absence as shown in his Order dated 24th June, 2021 at pages 1 7 and 18 of the record of appeal. 7 .22 In this regard, I find no merit in these two grounds. They are dismissed. 8. CONCLUSION -Jll- 8.1 For the reasons stated above, I find all the grounds of appeal to be bereft of merit as the trial court was entitled to make findings it did on the evidence available on record. 8.2 The appeal is accordingly dismissed and the finding of the lower court is confirmed. 8.3 Considering the circumstances of the case, each party will bear their own costs. DELIVERED AT LUSAKA THIS 21 DAY OF JUNE, 2024 sT ; .· 1 RE ~ :. ......... ... 2 1 JUN 2024 M.C. l{OMBE . JUDGE PO .t I • I -J12-