Esther Kahilu Chikote v Richmond Finance Zambia Limited (2023/ HN/ 365) (19 February 2024) – ZambiaLII

2023/ HN/ 365 IN THE HIGH COURT FOR ZAMBIA AT THE NDOLA DISTRICT REGISTRY HOLDEN AT NDOLA (Civil Jurisdiction) IN THE MATTER OF: SECTION 81 OF THE LANDS AND DEEDS REGISTRY ACT CAP 185 OF THE LAWS OF ZAMBIA IN THE MATTER OF: PROPERTY NO. F/842/Y/1143, KITWE IN THE MATTER OF: AN APPLICATION FOR REMOVAL OF CAVEAT REPUBLIC OF ZAMBIA HIGH CO,URT OF ZAMBIA BETWEEN: jy~ , 1'41m _2n2, LICANT ESTHER KAHILU CHIKOTE I U AND CIVIL REGISTRY NDOLA HIGH COURT P. 0 . eox 70004. N DOLA. RICHMOND FINANCE ZAMBIA LIMITED Before: Hon. Lady Justice Dr. Winnie Sithole Mwenda at Ndola this 19th day of February, 2024. For the Applicant: Mr. H. Aongola of Messrs. FCK Chambers JUDGMENT Cases referred to: 1. Construction and Investment Holdings Limited v. Company Zambia Limited (1972) Z.R. 66. 2. Lenton Holdings Limited v. Airforce Moyo ( 1984) Z.R. 55. 3. Jane Mwenya and Jason Randy v. Paul Kaping'a ( 1998) Z.R.17. 4. Banda and Another v. Mudimba, 2010/ HP/ A39 (Unreported). R2 5. Zambia Consolidated Copper Mines Limited u. Eddie Katalayi and Max Chilongo, CZ Judgm nt No. 2 of 2001. 6. Audrey Wafwa Gondwe u. Supa Baking Company Limited (in liquidation) and Another (2001) Z.R.57. Le islation referred to: 1. Order 6, Rule 1 (3) of the High Court Rules, Chapter 27 of the Laws of Zambia, as amended by the High Court (Amendment) Rules, Statutory Instrument No. 58 of 2020. 2. Sections 76, 77, 79 and 80 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia. 3. The High Court Act, Chapter 27 of the laws of Zambia. Text referred to: Bryan A. Garner (edited) Black's Law Dictionary 10th Edition (2014, Thomson Reuters). 1. Introduction 1.1 On 14th August, 2023, Esther Kahilu Chikote (the Applicant), filed an Originating Summons for Removal of Caveat, pursuant to Order 6, Rule 1 (3) of the High Court Rules, as amended by the High Court (Amendment) Rules, Statutory Instrun1ent No. 58 of 2020. R3 1.2 The Applicant sought the following remedies from this Court against Ri hmond Finance Zambia Limited (the Respondent): (i) An order that the caveat placed on property number F/842/Y / 1143, Kitwe, by the Respondent on the 30th day of June, 2023 be removed; (ii) An order for the surrender of the Title Deed for property number F /842/Y / 1143, Kitwe; (iii) Damages for inconvenience; and (iv) Costs of and incidental to this application. 2. Affidavit in Support of Originating Summons 2.1 The Applicant swore an affidavit in which she deposed that on 12th May, 2023 she placed a caveat on property number F/842/Y/1143, Kitwe, premised on a Consent Judgment entered under cause number 2023/ SK/LCA/001. As evidence of this avern1ent, copies of the Consent Judgment and Caveat were produced and marked "U:K l"and "EK 2", respectively. R4 2.2 The Applicant averr d that she has a beneficial interest in th aid property a it i matrimonial property subject of haring as cons nted on March, 2023. 6 Lh 2.3 According to the Applicant, she proceeded to place a caveat on the property in issue to secure her interest in the same but due to the system change that was being undertaken at the Ministry of Lands and Natural Resources at the time, the caveat lodgment was not completed on the material day by the Lands Office. 2.4 On 19th July, 2023 when she followed up the matter, she was instructed to resubmit the caveat documents using the computer-generated system as the system had changed. 2.5 When resubmitting the documents, she discovered that the Respondent herein had on 30th June, 2023, placed a caveat in their own right, much to the detriment of the purpose of the Consent Judgment which superseded any cause for the placement of the caveat by the Respondent. A copy of the Land Register print-out attesting to the fact, was produced and marked "EKC3". RS 2.6 The Applicant cont nded that the placement of the caveat by the Respond nt shall prevent any sale of the property to facilitat the agreement as endorsed by the Court under the Consent Judgment. 3. Affidavit in Opposition 3.1 The Respondent filed an Affidavit in Opposition sworn by M ukuzei-I she Zhou, the Managing Director for the Respondent Company wherein deponent averred that the interest which the Applicant professed to have in the subject property is between herself and her former husband. 3.2 That, on or about 5th July, 2023, the Respondent entered into an agreement with one Dalitso Mwanza who was the registered owner of the property known as F/ 842/ Y/ 1143, Kitwe, at a consideration of Kl00,000.00. Copies of the agreement and proof of payment were produced and marked "MIZl"and "MIZ2", respectively. 3.3 It was further asserted that, prior to the release of the said funds, the Respondent conducted a diligent search R6 on the property and discov red that the property had no encu1nbrances and in order to protect its interests, the Respondent filed a caveat at the Ministry of Lands. Copies of documents relating to the processing of the caveat were produced and collectively marked "MIZ3". 3 .4 That, according to the Respondent, the Applicant claims that she placed her own caveat on the property on 12th May, 2023. However, the documents produced clearly show that the said caveat was not processed and entered on the record because if the same had been processed, no other transaction would have been allowed on the property. 3. 5 Further, that the document produced as "EKC3", appears to confirm that the only caveat processed was that of the Respondent and not the Applicant. 3.6 It was further asserted that the Respondent was not aware and was not a party to the proceedings in the matter of Esther Kahilu Chikote and Dalitso Mwanza at the time the sale agr men t was made with the registered owner of the property Dalitso Mwanza nor R7 was there any indication that there were any other adverse claims on the property by anyone else. 4. Skeleton Arguments Applicant's Arguments 4.1 In the Skeleton Arguments filed together with the Originating Summons, it was submitted that upon dissolution of her marriage, the Applicant entered into a Consent Judgment for property settlement. Among the properties amenable for settlement under the Consent Judgment, was property number F /842/Y / 1143, Kitwe. The Applicant proceeded to place a caveat on the property in order to secure her interest in it. That, the Applicant has summoned the Respondent over the removal of a caveat on the said property that hinders the execution of the Consent Judgment much to the detriment of the Applicant. 4.2 It was further submitted that the application for removal of th caveat was made pursuant to the provisions of Section 81 of the Lands and D eds Registry Act, Chapter 85 of the Laws of Zambia, which provides as follows: RS ( 1) Such registered proprietor or another interested person may, if h thinks fil, ummon the caveator, or the person on whose behalf such caveat has been lodged, to attend before lhe Courl or a Judge thereof to show cause why such caveat should not be removed. (2) Such Court or Judge, upon proof that such person has been summoned, may make such order in the premises, either ex parte or otherwise, as such Court or Judge seems fit. 4.3 It was contended that the Applicant herein is an interested party in the property that was placed under a caveat as the same is amenable to property settlement and was a subject of sale as agreed under the Consent Judgment signed on 6th March, 2023. Further, that by the nature of a caveat, as placed by the Respondent, it will in essence hinder the execution of the agreement in terms of the Consent Judgment. It was argued that the Applicant is fortified in this regard by the provisions of Section 79 of the Lands and Deeds Registry Act which stipulates as follows: So long as a caveat in Form 8 remains in force, the Registrar shall nol make any enlry on lhe J,egister hnuing the effect of charging or lran. Jerring or olru:nui.-w ujf1::C'linr1 the estate or interest prolecled by su.ch crweal. R9 Provid d thal nothing herein shall prevent the completion of the registration of an instrumenl which has been accepted for registration b fore the receipt of the caveat. 4.4 That, further reliance can be made on the case of Construction and Investment Holdings Limited v. William Jacks and Company Zambia Limited1 , wherein Scott J., described the nature of a caveat as follows: The effect of a caveat is that the Registrar of Lands and Deeds is forbidden to make any entry on the register having the effect of charging or transferring or otherwise affecting the estate or interest protected by the caveat. 4.5 It was submitted that whatever arrangement was made that necessitated the Respondent placing the caveat does not supersede the Consent Judgment and therefore, it will be 1n the interest of justice that the caveat be removed. That, it is the Applicant's prayer that costs of this application be borne by the Respondent. Res ondent's Ar · men ts 4.6 It was submitted m the Respondent's Skeleton Arguments filed on 20ll1 November, 2023, that the RlO Respondent 1s a registered financial institution specialising in giving loans and mortgages. On or about 5th July, 2023, one Dalitso Mwanza, approached the Respondent with the intention of selling his property F/842/Y/ 1143, situate in Kitwe in the Copperbelt Province of the Republic of Zambia. Dalitso Mwanza executed with the Respondent an agreement for the sale of the property in issue to the Respondent at a consideration of Kl00,000.00, an amount which was paid to the said Dalitso Mwanza. In order to secure its interest, the Respondent placed a caveat on property number F /842/Y / 1143. 4. 7 It was submitted further, that the Applicant has applied before this Court for the removal of the caveat lodged by the Respondent on the ground that the caveated property is subject of a settlement order pursuant to a Consent Judgment of the parties entered into between the Applicant and Dalitso Mwanza in the case of Esther Kahilu Chikote and Dalitso Mwanza2023 / SK/LCA/ 001 . That, the Applicant also alleges that she attempted to lodge a caveat on the property, • Rll which caveat app ars not to have been entered and r gister d. Furth r, that the Applicant describes herself as an interested party in the property. She then calls for the re1noval of the Respondent's caveat. 4.8 It was the Respondent's contention that the Applicant in her Skeleton Arguments ably summarised the law relating to the removal of a caveat. However, the Respondent wished to address the law upon which a caveat can be entered on a property. In this regard, the Respondent cited Section 76 of the Lands and Deeds Act which states as follows: Any person - (a) claiming to be entitled to or to be beneficially interested in any land or any estate or interest therein by virtue of any unregistered agreement or other instrument or transmission or of any trust expressed or implied, or otherwise howsoever; or (b) transferring any estate or interest in land to any other person to be held in trust; or (c) being an intending purchaser or mortgagee of any land; may al any t.ime lodge with the Registrar a ccwent in Form 8 in lhe Schedule. 4.9 Section 77 prescrib~s th manner of registering a caveat as follows: Rl2 Every cav at shall be signed by the caveator or by his attorney or agent, and shall slal wilh sufficient certainty the nature of the state or inler sl claimed by the caveator, with such other information and evidence as may be required by any regulations under this Act, and shall appoint a place or give an address within 4. 83 lcilometres of the Registry of or to which notices and proceeding relating to such caveat may be served or addressed. 4.10 It was submitted that, ans1ng from the above, it 1s necessary to examine -qnder what circumstances a caveat may be lodged. That, a caveat may be lodged against a property by any person who has an enforceable interest in the land. It is not enough for such a person to say he has an interest but must produce evidence to support such a claim of right. A caveator's cause of lodging a caveat is therefore, dependent upon the nature of the interest and the documents produced. The interest claimed must be reasonable and justified and without that, no such caveat can be entered and maintained. 4.11 That, in the case of Lenton Holdings Limited v. Moyo2 , where the effects of Sections 76 and 77 of the Lands and Deeds Registry Act wer consider d, D. .J Ngulube (as he then was), observed as follows: R13 Although the terms of ction 76 (a) would appear to be very wide ind d as an be seen, yet they would not, in my considered opinion, go as Jar as lo cover rights which are otherwise recognisable as being lawfully obtained or held. However, Section 77 (1) which we have set out would appear to require that the caveat should disclose the interest obtained. 4.12 It was submitted that in the Respondent's Affidavit in Opposition to Originating Summons for the Removal of the Caveat, the Respondent · has established the following: (a)Farm No. F/842/Y/1143 was and still is registered in the name of Dalitso Mwanza alone; (b) Dalitso Mwanza sold the subject property to the Respondent at a consideration of Kl00,000.00; (c) The consideration of Kl00,000.00 was paid to Dalitso Mwanza by the Respondent on the 14th day of July, 2023; (d)There was executed between the Respondent and the said Dalitso Mwanza a sale agreement for property number / 1143. r◄ /842/Y R14 4.13 The Respondent argued that placing of a caveat on the property in issue was necessary 1n order for the Respondent to secure its interest 1n the same, the Respondent having had su fficient interest to do that. Further, that the Respondent carried out a diligent search to find out whether there were any other interests on the property but there were none. 4.14 The Respondent further submitted that the question to be asked is what interest the Applicant has in the property. That, according to the Applicant her interest arises out of the Consent Judgment between herself and Dalitso Mwanza, her former husband, executed before the Subordinate Court under cause number 2023/SK/LCA/001, where it was agreed that the property be subdivided and sold and the proceedings shared equally between the parties. 4. 15 The Respondent contends that it was not a party to the said proceedings and that if Dalitso Mwanza breached the terms of the Consent Judgment, such concerns should be addressed before the Court that issued the Consent Judgment. It was further argued that if there R15 has been a breach and or non-compliance with the Cons nt Judg1n nt x cut d as aforesaid, this Court has no jurisdiction to deal with this issue unless on appeal and/ or when the matter is referred to this Court. That under these circumstances, the Respondent has a secured interest which cannot be dislodged by the Applicant. It was the Respondent's prayer that the action fails with costs. 5. The Hearing 5.1 The application came up for hearing on 24th November, 2023. Mr. Aongola, learned Counsel for the Applicant submitted that the Applicant would rely on the documents filed in support of the application before Court. Counsel augmented the documents filed by submitting orally that it is not in dispute that the Respondent is aware that the property in question is in dispute. Further, that the Respondent has not disputed that the Applicant is entitled to the property as per the Consent Judgm nt filed and that th R spondent has also not disputed that it placed a caveat on the property and has the Certificate of Title in its possession even R16 though it has not been exhibited before this Court. Further, that it is not in dispute that the property cannot be sold by the Applicant in the absence of a Certificate of Title and with a caveat placed on the property. 5.2 Mr. Aongola submitted, further, that the Applicant has noted that the Respondent has exhibited a letter of sale relating to the property as "MIZla" which is inconsistent with the Consent Judgment exhibited before this Court by the Applicant. That, it is clear in paragraph two of the Consent Judgment, that the parties consented to have the property evaluated before any sale can take place. That, the Respondent has not exhibited an evaluation report in its Affidavit in Opposition and the Applicant has asked this Court to take judicial notice of the Judgment of the lower Court relating to this particular property which is exhibited as "EKCl" in the Applicant's Affidavit in Support. 5.3 It was submitted that the basis for requesting th Court to take judicial notice of th Judgment is because the Judgment cannot be enforced to date light of the R17 caveat placed on it and the retention of the Certificate of Title by th Respondent. That, it is in light of the aforementioned that the Applicant craves the indulgence of this Court to grant her the reliefs she has sought. The Applicant also prayed for costs of and incidental to the proceedings. 5.4 In response, Mr. Mwelwa, learned Counsel for the Respondent, submitted that the Respondent would rely on the Affidavit in Opposition and Skeleton Arguments filed on 20th November, 2023. To augment the filed documents, learned Counsel submitted that in matters of this nature it is important that the Applicant should have taken steps to enter a caveat on the property immediately the Consent Judgment was executed. 5.5 With regard to the Applicant's argument that she filed a caveat before the Ministry of Lands but it wa not activated because of a system failure, Counsel submitted that if the aveat was not entered in the r gister al the Ministry of Lands, then it is of no fi ct. Thc.1 t, 1h e /\ppl icu I it had been graciou nough to produce exhibit "b 'K3c", which show that the only R18 caveat on the record was plac d by the Respondent. That, at the time the Respondent placed a caveat on the record, it had done a diligent search and discovered that there were no other adverse claims on the property and that is why the Respondent's caveat was entered. Further, that there cannot be a caveat on a caveat and if there was a caveat on the property, the Respondent's caveat would not have been registered. 5.6 Learned Counsel submitted, further, that a glance at exhibit "EKC3b" does not show that it was ever processed by the Ministry of Lands. That in contrast, the Respondent's exhibit "MIZ3a" clearly shows a stamp from the Ministry of Lands, while exhibit "MIZ3b" shows the process the Respondent went through to register a caveat. Lastly, that the Respondent would not have known that there were other adverse interests on the property in the absence of a caveat being validly registered by the Applicant. Further, that the Respondent would not have known that there was a Consent Judgment involving the Applicant and a Mr. Dalitso Mwanza, the Applicant's former husband, as R19 that information was within the exclusive knowledge of Mr. Mwanza. 5. 7 That, paragraph 14 of the Affidavit in Opposition clearly explains what the position was at the time of the sale of the property to the Respondent. The Respondent paid money to one Dalitso Mwanza to acquire interest in the property in issue and to protect that interest, it was necessary to place a caveat on the property. Counsel bemoaned the fact that neither of the parties to this action joined Mr. Mwanza to the proceedings as it would have greatly helped the Court interrogate him to find out what he was seeking when he committed his property to secure other interests. Further, that there being no caveat registered by the Applicant on the property, the Respondent cannot be faulted at all for placing the caveat on the property as it was necessary to protect the Respondent's interest. Counsel submitted that there is a difference between filing a caveat and having it registered. That, you can file a caveat today but as long as it i. nol registered it is invalid. R20 5.8 Submitting in reply, Mr. Aon.gala stated with regard to th issu of joining Mr. Mwanza to the proceedings, that Order 8 of the High Court Rules in relation to joinder of parties, allows any person to join a party to proceedings. He submitted that the Respondent had slept on its rights and to raise the issue at this point, only showed a failure on the Respondent's part. 5. 9 With regard to the Respondent's submission that the Respondent could not have been aware that there were adverse claims on the property, it was submitted that the Applicant would rely on the case of Jane Mwenya and Jason Randy v. Paul Kaping'a3 which was to the , effect that a party that is entering into a transaction to do with land must make a prudent search of the information relating to that property whether actual or constructive. That, Section 7 of the Penal Code indicates that ignorance of the law is no defence. 5. 10 Counsel cited Article 16 of the Constitution of Zambia in relation to d~priva t ion of property in relation to the suhmitt d paragraph 14 of th Affidavit in Opposition and that the Respondent acquired interest in the R21 property. That, Articl 16 of the Constitution is clear that no interest in property can be taken away without compensation unless the exceptions in the Article are at play. 5.11 Finally, that with regard to the registered caveat, it is clear even on record, that the Applicant did apply for a caveat and paid the necessary fees, therefore, failure by the Ministry of Lands to process the said caveat ahead of the Respondent's application cannot be impugned on the Applicant. 6. Analysis and Court's Decision 6.1 I have considered the application by the Applicant for removal of the caveat placed by the Respondent on property No. F / 842/Y / 1143, Kitwe, the documents filed 1n support of and indeed, 111 opposition to the application, as we11 as oral submissions by Counsel for both parties. 6.2 The fact. Lhut have led to tht> appli ·ation b fore this Court have been well art in ilnt cl by both parties and it is not in dispute thal the Respondent did place a caveat R22 on the property in issue on 30th June, 2023, which the Applicant wants this Court to remove as, according to the Applicant, the same is making it impossible for the property to be sold and the proceeds shared equally with her former husband Dalitso Banda pursuant to a Consent Judgment of the parties entered into between Esther Kahilu Chikote and Dalitso Mwanza under cause number 2023/SK/LCA/001. 6.3 Consequently, what this Court needs to determine is whether or not the Applicant has made out a good case for the Court to remove the caveat placed on the property by the Respondent. 6.4 The evidence before this Court is to the effect that the Respondent entered into an agreement with Dalitso Mwanza, the registered owner of property number F/842/Y/1143, Kitwe, on 5th July, 2023, whereby the Respondent bought the said property from Dalitso Mwanza for a consideration of Kl00,000.00. A copy of the agreement and proof of payment of the Kl00,000.00 have been exhibit d in th Respondent's Affidavit n Opposition as "MIZ l "and "MIZ2", respectively . • ■ R23 6.5 Prior to the sale of the property, that is, on 30th June, 2023, the Respondent placed a caveat on the property to secure his interest in the same. The Applicant has argued that she had placed a caveat on the same property on 12th May, 2023, whose processing was not completed due to a system change that was being undertaken at the Ministry of Lands at the time. That, when she followed up the matter on 23rd July, 2023, she found that the Respondent had placed his own caveat on 30th June, 2023. 6.6 It is evident that since the Applicant's caveat was not registered when she filed her document at the Lands and Deeds Registry, when the Respondent did its search no adverse claim had been registered on the property and that is the reason why the Respondent was able to place its caveat on the property. Had the Applicant's caveat been successfully placed on the property, registration of the Respondent's caveat would not have taken place as there cannot be a caveat upon a caveat, as rightly submitted by Counsel for the Respondent. Indeed, Section 79 of the Lands and Deeds Act clarifies the issue when it states: .So Lon as u ccweal in Form R renwins in orce the Re istrar shall not make an11 entr11 nn lhe Reoisler hauinq the effect of charging JIii R24 or transferring or otherwi e a{(ectinq the estate or interest protected by such cav al: Provided lhat nothing herein shall prevent the completion of the registration of an instrument which has been accepted for registration before the receipt of the caveat. (Emphasis supplied by the Court) 6. 7 For the above reason, I am in agreement with the submission by learned Counsel for the Respondent that since the Applicant's caveat was not registered in the Lands Register, it is of no effect and the only caveat which was placed on the record was the one placed by the Respondent as evidenced by exhibit "ECK3" in the Affidavit in Support of Originating Summons. 6.8 It was argued by learned Counsel for the Applicant that the Respondent should have made a prudent search for adverse claims on the property before placing the caveat, and for that argument relied on the case of J ane Mwenya and Jason Randy v. Paul Kaping'a (supra). which, according to Counsel, was to the effe t that a party that is ent·ering into a transaction to do with land must make a prud nt search of th information relating to that property whether actual or constructive. R25 However, in this case, I am of th considered view that there is evidence on the record that the Respondent did a search at the Lands and Deeds Registry which showed that the property was unencumbered and in the name of the registered owner Dalitso Mwanza and it is for that reason that the Respondent was able to place a caveat on the property. 6. 9 It was submitted by Counsel for the Respondent, that the Respondent would not have known that there were other adverse interests on the property in the absence of a caveat being validly registered by the Applicant. Further, that the Respondent would not have known that there was a Consent Judgment involving the Applicant and a Mr. Mwanza, the Applicant's former husband, as that information was within the exclusive knowledge of Mr. Mwanza. I agree with the arguments submitted on behalf of the Respondent and would go on to state that, due to the lack of knowledge on the part of the Respond nt about the Applicant's arrangement between herself and her former husband, Dalitso Mwanza, the Respondent was a bona fide purchaser for R26 valu wi hout noti f ny laim. on the part of th Appli nt. .10 la k' Law Dictionary d fines a bona fid purchaser as: Someone who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller's title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims ... 6.11 In the case of Banda and Another v. Mudimba4, this Court aptly laid out the requirements which must be fulfilled when relying on the doctrine of bona fide purchaser as follows: a) The purchaser must have acted in good faith; b) The purchaser must have acquired an interest in the property by grant rather than operation of law; c) The purchaser mu t have given value for th property; d) The Purchaser must ge1 erally have obtained a R27 legal interest in the property; and e) The Purchas r mu t have had no notice of the equitable interest inherent at the time he gave his consideration for the conveyance. 6.12 Further, in the case of Zambia Consolidated Copper Mines Limited v. Eddie Katalayi and Max Chilongo5, Chief Justice Ngulube had the following to say on the issue of bona fide purchaser for value: It was not possible without basis to ignore the rights of an innocent purchaser for value and who had no reason to suspect there was to be an adverse claim ... there would be no justification to inflict injustice on the third party in the name of justice. 6.13 In Audrey Wafwa Gondwe v. Supa Baking Company Limited (in liquidation) and Another6 the Supreme , Court had the following to say: Where the property has already passed to the third party, the third party is an innocent purchaser for value without notice of an adverse claim. 6. 14 From the evidence before this Court, it is clear that the Respondent was a bona fide purchaser of property numb r F/ 842/Y/11 43, Kitw , fr om Dalitso Mwanza, the registered owner of the property, for value and - R28 without notice of the Applicant's beneficial interest in the sa1ne. Further, the Respondent acquired an interest in the property by grant rather than operation of law and gave value for the property with the payment of consideration of Kl00,000.00 and obtained a legal interest in the property. Furthermore, the Respondent had no notice of the beneficial interest of the Applicant inherent at the time it gave its consideration for the conveyance. Lastly, since property had already passed to the Respondent at the conclusion of the contract of sale, the Respondent was a bona fide purchaser for value without notice of the Applicant's adverse claim. 6. 15 In my view, it is clear that the Applicant's former husband, Dalitso Mwanza, breached the terms of the Consent Judgment for property settlement by selling a property which was a subject of the settlement. A Consent Judgment is legally binding on the parties and since one party to the agreement breached its terms by selling the property, the Appli ant is at liberty to take up the issue of enforcement of the Consent Judgment I R29 against her former husband, Mr. Dalitso Mwanza, in the Subordinate Court where the Judgment was executed. 7. Conclusion and Orders 7.1 For the reasons aforestated, the Originating Summons for removal of caveat has failed and is dismissed. 7.2 Costs of and incidental to this action are awarded to the Respondent, to be taxed in default of agreement. 7.3 Leave to appeal is granted Delivered at Ndola this 19th day of February, 2024. Winnie Sithole Mwenda (Dr.) JUDGE