SELECTED JUDGMENT NO.

40 OF 2018

P. 1404

IN THE SUPREME COURT OF ZAMBIA Appeal No. 161/2015

HOLDEN AT KABWE SCZ/8/166/2015

(Civil Jurisdiction)

BETWEEN:

CHISHALA KARABASIS NIVEL (MALE) 1st appellant

SHARON MWALE (FEMALE) 2nd appellant

AND

LASTON GEOFFREY MWALE RESPONDENT

Coram: Mambilima, CJ, Malila and Musonda, JJS

On 7th August, 2018 and 25th September, 2018

For the first appellant: No appearance

For the second appellant: No appearance

For the respondent: In person

JUDGMENT

MALILA, JS, delivered the Judgment of the Court.

Cases referred to:

1. Chikuta v. Chipata Rural Council (1974) ZR 241.

2. New Plast Industries v. Commission of Lands and Attorney-General
SCZ Judgment No. 8 of2001
3. Lindsell v. Phillips (1885) 30 Ch D 291).
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P. 1405

4. African Banking Corporation (Z) Limited (T/A Banc ABC) v. Plinth

Technical Works Limited SCZ No. 28 of 2015.
5. Lumus Agricultural Services Co. Ltd. And Another v. Gtvembe Valley
Development Ltd. (SCZ No. 1 of 1999.
6. Sundi v. Ravalia (1949-54) NRLR 345.
7. Trevor Limpic v. Rachel Mawere and 2 Others (SCZ Judgment No. 35 of
2014).
8. Wilson Masauso Zulu v. Avondale Housing Project.
9. Davy v. Garret (1878) Z Ch. 473.
10. Sableland Zambia Ltd. v. Zambia Revenue Authority (2005) ZR 109
11. Patel and Another v. Monile Holding Company Ltd (1993 - 94) ZR 20
12. Mazoka and Others v. Mwanawasa and Others (2005) ZR 138.
13. Sithole v. Zambia State Lotteries Board14 (1975) ZR 106.
14. Khalid Mohamed v. Attorney General (1982) ZR 49.

Other legislation referred to:

1. Rules of the Supreme Court White Book (1999 edition).

2. Lands and Deeds Registry Act.

Other works referred to:

1. Halsbury’s Laws of England, 4th ed.

The events which, in their legal bearing, we are being called

upon to consider in this appeal, lie at the heart of any

matrimonial union - mutual trust and confidence. They relate to

a fraud allegedly perpetrated by a wife against her husband.

The appeal requires of this court to strike a balance

between two competing principles. On one hand, the vindication

of the rights of an innocent purchaser of land for value without

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P. 1406

notice of any defect in the vendor’s title; and on the other, judicial

vigilance not to give succor to land transactions sullied in

impropriety or fraudulent activity. On a wider canvass, the

appeal requires this court to determine the fundamental

question whether a co-owner of property could, without the

consent of the other co- owner(s), assign the whole interest in the

property to a third party.

There is, however, an overarching procedural question: was

the mode of commencement of the proceedings in the lower

court, measured against the relief sought, appropriate in the

circumstances? Put nakedly, should the trial judge have

proceeded in the manner she did, that is to say, relying solely on

affidavit evidence, granted the relief sought in the originating

process and the nature of the issues raised by the facts? We shall

revert to these issues later in this judgment. For now, we

continue with the narrative of the factual and procedural

background.
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P. 1407

The two appellants were, between themselves, purchaser

and vendor respectively, of the property known as Stand No. 330,

on Eucalyptus Avenue, Avondale, Lusaka (the property). And

here we use the terms ‘purchaser’ and Vendor’ in a very generic

way as will become apparent later on.

The second appellant, Sharon Erny Mwale, is the estranged

wife of the respondent, Laston Geoffrey Mwale, and co-owned the

property with the respondent.

Earlier in time, in 1996 to be precise, the property had been

offered for sale to the respondent by Indeco Estates Limited. He

paid for it in 2004. Probably against better judgment on his part,

the respondent decided to have his wife included as co-owner of

the property and proceeded to take the relevant steps for her to

be reflected as such in the certificate of title. The certificate of

title mentioned the two as owners without indicating the nature

of the shared ownership, in particular, whether they were

tenants in common or joint tenants. The respondent, however,

claims in his supporting affidavit lodged in the lower court, that

there was a joint tenancy.

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It is unclear as to when the matrimonial bliss between the

second appellant and the respondent may have ended. What is

certain, however, is that the respondent, in the year 2000,

relocated to the United Kingdom where he was engaged in gainful

activity in an accounting firm named Daniel & Associates, which

he established. The second appellant remained in Zambia.

It appears that while the respondent was away in England,

the second appellant was oppressed by a financial obligation of

a considerable magnitude which she had assumed to a company

called Brafuss Limited (Brafuss) associated with or owned by the

first appellant. That obligation culminated in a law suit in the

High Court at the instance of the said company under cause No.

2011/HP/907, which suit led to the settlement of a consent

order.

In terms of that consent order the second appellant’s

indebtedness in the sum of K450,000 to Brafuss, was amortised

through the assignment of the subject property to the first

appellant, assessed at a selling price of K750,000, with the sum

of K300,000 being paid to the second appellant in cash. The

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transfer of the property was subsequently registered in the

Lands and Deeds Registry at the Ministry of Lands.

The respondent’s narrative of events is that the conveyance

of the property by the second respondent to the first was without

his knowledge and consent as co-owner; that the second

respondent purported to act on his behalf using the authority of

a forged power of attorney dated 4th September, 2009 which was

neither signed by himself, nor authenticated as required by

section 3 of the Authentication of Documents Act, chapter 75 of

the laws of Zambia, nor registered at the Lands and Deeds

Registry in terms of the provisions of the Lands and Deeds

Registry Act, chapter 185 of the laws of Zambia.

It was the respondent’s further narration that from 2000 to

2005 he was residing in the United Kingdom while his estranged

wife continued to live in Zambia at the said property. To his

knowledge and understanding the certificate of title to the

property remained in the names of his wife and he. He was,

however, alerted in December 2014 that the property had been

locked and his wife no longer resided there. It was then that the
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full details of what had transpired, as explained above, were

revealed to him.

The respondent reiterated that he had never authorized his

wife to sell his interest in the property, nor had he issued any

power of attorney in favour of his spouse in regard to the

property. Furthermore, he swore that the identity document,

namely Passport No. ZG 05265, used to facilitate the assignment

of the property, had expired on 7th April, 2008.

It was the respondent’s further testimony that he was

unaware of the second appellant’s dealings with Brafuss and the

first appellant, nor was he privy to the consent judgment entered

into between the second appellant and Brafuss affecting the

subject property although it mentions him as a consenting party.

He asserted that the whole assignment of the property to which

he, as co-owner, was not privy, was a fraud.

It was on the foregoing basis that the respondent, by

originating summons, moved the High Court seeking:

(a) a declaration that he was a joint tenant of the subject property;

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(b) a declaration that the sale of the property by the second

appellant without his knowledge and consent was null and void;

(c) an order for a writ ofpossession to issue against the occupant of

the subject property;

(d) costs; and

(e) any other relief that the court deemed fit.

The learned High Court judge evaluated the evidence

deployed before her. In a judgment given on 1st June, 2015, she

upheld the respondent’s claim. She agreed with the respondent

that the second appellant had committed a fraud on the

respondent given that the consent order on the strength of which

the conveyance of the property to the first appellant was done,

was not signed by the respondent, nor did the respondent

execute the assignment and the power of attorney used to convey

title in the property to the first appellant. Furthermore, the said

power of attorney was neither authenticated nor registered as

required by law, thus making the document null and void.

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The learned judge also noted many other irregularities

which, in her view, pointed to nothing less than fraudulent

conduct on the part of the second appellant. She found that the

second appellant lacked authority to transfer ownership in the

property to the appellant. The factors leading to the conveyance

of the property did, in the learned judge’s view, combine to legally

undermine the integrity of the property conveyance transaction

between the first appellant and the second appellant.

In the estimation of the learned judge, the first appellant

was not guilty of any impropriety, yet the fact that the property

was transferred to him through fraudulent conduct on the part

of the second appellant meant that the title that he acquired was

tainted, thus making the challenge of that title by the respondent

legally appropriate in the circumstances.

According to the trial judge, the first appellant cannot, in

the premises, be considered to be a purchaser for value who

obtained title in good faith without notice of defects in title

because the principal party, namely the second appellant, had

no authority to unilaterally confer title in a co-owned property on

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any person whatsoever. Citing section 34(1)(c) of the Lands and

Deeds Registry Act, the learned judge concluded that, as the first

appellant was not a bona fide purchaser of the property,

cancellation of the title deeds issued to the first appellant was

warranted. She ordered accordingly.

More interestingly perhaps, the learned judge, buoyed by

what she regarded as despicable conduct on the part of the

second appellant in all this, also ordered that, as the second

appellant had engaged in fraud, she forfeited her interest in the

property.

Disconsolate with the judgment, the first appellant now

appeals on two grounds namely:

1. That the learned trial judge erred in law in holding by ordering that
the cancellation of certificate of title without considering the fact that
the property in issue was jointly owned and that as regards the 2nd
appellant interest in the property in question she had sufficient
interest to transfer her interest in the property to effect transfer or
her interest to the 1st appellant in the said property, [sic!]
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P. 1414

2. The learned High Court judge misdirected herself in law and fact
when she held that the 2nd respondent had forfeited her interest in
the property in question without going further to declare as to whom
forfeited interest was to devolve to. [sic!]

On behalf of the first appellant, very brief heads of

argument were filed in support of the appeal by Messrs Palan &

George, Advocates. Prior to the hearing, however, the said firm of

Advocates obtained from a single judge of this court, an order for

withdrawal as Advocates.

There were no heads of argument filed by the second

appellant, and this hardly surprised us as the record shows that

she did not take any active part in the proceedings in the court

below. There were equally no heads of argument filed on behalf

of the respondent.

At the hearing of the appeal, there was no representation

or appearance for both appellants. The respondent appeared in

person and offered an explanation for his counsel’s absence. He

was, however, unable to give a satisfactory answer as to why no

heads of argument were filed on his behalf despite his Advocates

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having been served with all the appeal documents as way back

as 2015.

In these circumstances, we would have been inclined to

strike out, or even dismiss, the appeal for non appearance of the

appellants in accordance with Rule 71 of the Supreme Court

Rules, chapter 25 of the laws of Zambia. Considering, however,

that the respondent had had to travel for the appeal from the

United Kingdom, and also that he had not filed his own heads of

argument, we directed that the heads of argument on behalf of

the respondent be filed within 21 days from the date of hearing

and that we would, in any event, deliver our judgment thereafter

taking fully into account the parties’ heads of argument.

On behalf of the respondent, heads of argument were filed

on 27th August, 2018, the very last day of the period given for

that purpose.

Besides recounting the undisputed facts regarding the

second appellant’s indebtedness, the consent order and the

conveyance of the subject property to the first appellant, the first

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appellant’s heads of argument did not raise any significant point

of law, nor did they make reference to any authority.

The only point raised with some verve is the claim that as

the lower court had ordered forfeiture of the second appellant’s

interest in the property, that interest ought to be transferred to

the first appellant. It was contended that if this is not done, the

second appellant would benefit by operation of the law in the

event of death or divorce as she is the wife of the respondent.

In the respondent’s heads of argument it was argued, in

respect of grounds one and two, that the lower court judge was

right in ordering the cancellation of the certificate of title. This

was because, besides being forged, the power of attorney was not

authenticated. We were referred to section 3(a) of the

Authentication of Documents Act, chapter 75 of the laws of

Zambia which provides as follows:

.......... Any document executed outside Zambia shall be deemed to be

sufficiently authenticated for the purpose of use in Zambia if

(a) In case of a document executed in Great Britain or Ireland it

is duly authenticated b y a notary public under his signature.
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P. 1417

Counsel also adverted to the case of Lumus Agricultural Services

Co. Ltd. And Another v. Gwembe Valley Development Ltd.5 where it was

stated, among other things, that if a document executed outside

Zambia is not authenticated, as provided by the Authentication

of Documents Act, then it is invalid for use in this country.

Counsel’s argument, as we understand it in regard to the

power of attorney, is that it could not be a basis for conveying

title to the first appellant as it was void on two accounts; it was

a forged document, and was not authenticated.

The learned counsel for the respondent then moved on to

submit on the law relating to the registration of documents under

the Lands and Deeds Registry Act. He quoted section 4 of that

Act which reads in part that:

Every document purporting to grant, convey or transfer land or an

interest in land must be registered unthin the time hereafter specified
in the registry.

He also cited section 6 of the same Act which states that

any document requiring registration under the Act which is not

registered shall be null and void. Predictably, counsel also

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referred us to Sundi v. Ravalia6 where the equivalent of section 6 of

the Act was interpreted to mean that such documents were

without legal effect.

Counsel also cited the case of Trevor Limpic v. Rachel Mawere

and 2 others7 where we held that compensation would not be

ordered for a party who had acquired a property fraudulently.

This authority, according to counsel for the respondent,

supported his submission that as the first appellant fraudulently

acquired the property, no question of compensation to him arose.

The case of Wilson Masauso Zulu v. Avondale Housing Project8 was

also cited to buttress the submission counsel made that the

lower court’s findings of fact should not be tempered with

because on available evidence they were not perverse.

The learned counsel then focused his energies on the

import of section 33 of the Lands and Deeds Registry Act on the

conclusiveness of the certificate of title and the fraud exception.

We appreciate the arguments that were made in this regard part

of which were already canvassed in the lower court.

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P. 1419

We have carefully considered the circumstances that

motivated the current proceedings. If proven, they could

constitute a perfect example of betrayal of trust and confidence

by a spouse against another; the very antithesis of the

matrimonial vows. It is, however, not the province of this court

to pronounce itself on the morality or possible criminality of the

second respondent’s conduct.

As we intimated at the outset, the question that calls for

determination is whether the appellant was indeed an innocent

purchaser for value of the property without notice of any defect

in title on the part of the second appellant. The second and

consequential issue is what the effect is on the conveyance of the

property to the first appellant if fraud on the part of the second

appellant is confirmed.

We intimated early on in this judgment that the certificate

of title issued to the second appellant and the respondent

revealed shared ownership of the property. What the certificate

of title does not state is the precise nature of such shared

ownership; were the two title holders joint tenants or tenants in

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common? We believe this is an important point warranting our

comment, albeit in passing.

The distinction between the two forms of common

ownership is significant. A joint tenancy is characterized by the

presence of the four unities, namely unity of title, unity of

possession, unity of time and unity of interest. All this is

underpinned by the right of survivorship.

In a tenancy in common, on the other hand, none of the

owners owns a specific part of the property; they have different

ownership interests which interests may be created at different

times. Tenancy in common carries no right of survivorship.

How do we categorise the shared ownership of the property

by the first appellant and the respondent? The answer resides in

section 51 of the Lands and Deeds Registry Act chapter 185 of

the laws of Zambia. That section provides as follows:

(1) Any two or more persons named in any instrument under Parts III
and VII, or requiring to be registered under this Act as transferees,
mortgagees, lessees or proprietors of any land or estate or interest
therein, shall, unless the contrary is expressed, be deemed to be
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entitled as joint tenants with the right of survivorship, and such

instrument, when registered, shall take effect accordingly.

In the present case, therefore, although the certificate of

title did not state that the second appellant and the respondent

were joint tenants, they were such tenants by operation of

section 51 of the Lands and Deeds Registry Act.

Notwithstanding the foregoing observation, we believe that

the procedural question in this case deserves more eminent

consideration as it implicates the jurisdiction of the court.

The proceedings in the lower court were commenced, as we

have stated already, by originating summons pursuant to Order

30 Rule 11 of the High Court Act, chapter 27 of the laws of

Zambia.

It is important to bear in mind that, as far as

commencement of proceedings in the High Court is concerned,

the anchor provision is Rule 6 of the High Court Rules, chapter

27 of the laws of Zambia which provides as follows:

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(1) Except as otherwise provided by any written law or these Rules

every action in the High Court shall be commenced by writ of
summons endorsed and accompanied by a full statement of claim.

(2) Any matter which under any written law or these Rules may be
disposed of in chambers shall be commenced by an originating

summons.

For any person contemplating litigation, this rule should

form the starting point in considering the procedural options for

commencement of an action. It seems to us that in terms of Rule

6 of the High Court Rules, it is mandatory to initiate proceedings

by writ of summons save for circumstances specified in that rule.

A party employing originating summons to move the court ought

to be in a position to demonstrate that his use of such procedure

is required or permitted under a rule or statute, or involves

matters that can be determined in chambers.

In Chikuta v. Chipata Rural Council1 we stated that where a

matter is commenced using a wrong mode, the court will have no

jurisdiction. Moreover, where the mode of commencement is

prescribed under a statute, such mode of commencement must

be followed. We held in New Plast Industries v. Commissioner of Lands

and Attorney-General2 that where a statute prescribes the mode of

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commencement of action, it was such prescription rather than

the relief sought which should determine how an action is

commenced.

As regards the nature of the business that may be disposed

of in chambers, Order 30 rule 11 of the High Court Rules lists

these as follows:

(a) Application for time to plead, for leave to amend pleadings, for
discovery and production of documents, and generally all
applications relating to the conduct of any cause or matter;

(b) An application by any person claiming to be interested under a

deed, will or other written instrument for the determination of any
question of construction arising under the instrument and for a
declaration of the rights of the person interested;

(c) An application by any person claiming any legal or equitable right,

in a case where the determination of the question whether he is
entitled to the right depends upon a question of construction and for
a declaration as to the right claimed;

(d) All proceedings in the Court under the Trustee Act, 1893, or under
the Land Transfer Act, 1897, of the United Kingdom;

(e) Application as to the guardianship and maintenance or

advancement of infants;
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(f) Applications connected with the management ofproperty;

(g) Applications for or relating to the sale by auction or private contract

of property, and as to the manner in which the sale is to be
conducted, and for payment into Court and investment of the
purchase money;

(h) All applications for the taxation and delivery of bills of costs and for
the delivery by any Advocate of deeds, documents and papers;

(i) All matters which under any other rule or statute were formerly
allowed to be commenced by originating summons;

(j) Such other matters as a Judge may think fit to dispose of in

chambers.

Our reading of Order 30 rule 11 is that originating

summons should only be resorted to in circumstances where

there is no dispute on questions of fact or a likelihood of such

dispute; where for example, the issue is to determine short

questions of construction, and not matters so contentious or

potentially contentious that the justice of the case would demand

the settling of pleadings and the leading of evidence in a

particular way.
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Courts have consistently guided themselves, and in our

view correctly, by refraining from trying matters of disputed

questions of fact on originating summons. See for example

Lindsell v. Phillips3.

The drafting of the reliefs sought by the respondent in the

lower court was in very basic terms. In fact, so simple a style was

used to structure the reliefs that one would be persuaded at first

blush to imagine that the dispute could be disposed of on

affidavit evidence in chambers. A perusal of the affidavit filed in

the lower court, however, confirms that the devil indeed lies in

the detail. It reveals that the facts relied upon by the respondent

to found his claim in the lower court were anything but straight

forward. They were potentially disputable. At any rate they

required strict proof.

The respondent imputed forgery or fraudulent conduct on

the part of the second appellant. It is now settled that claims

founded on forgery or fraud ought to be specifically pleaded and

strictly proved. Pleadings in this case were not only desirable,

they were necessary.

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The case of Davy v. Garret9 is authority for the position that

any charge of fraud must be pleaded with utmost particularity

and fraudulent conduct must be distinctly alleged and proved

and is not to be left to be inferred from the facts. Paragraph 36

of Halsbury’s Laws of England (4th ed.) provides that where a party

relies on any misrepresentation, fraud, breach of trust, wilful

default or undue influence by another party, he must supply the

particulars in his pleadings.

Order 18 rule 12(1) (a) of the Rules of the Supreme Court,

the cases of Sableland Zambia Ltd. v. Zambia Revenue Authority10 and

Patel and Another v. Monile Holdings Company Ltd11 as well as Mazoka

and Others v. Mwanawasa and Others12 all reiterated the point that

fraud must be pleaded specifically. The standard of proof is

higher than a mere balance of probabilities. In Sithole v. Zambia

state Lotteries Board13 we stated that if a party alleges fraud, the

extent of the onus on the party alleging is greater than a simple

balance of probabilities.
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We are of course mindful of the fact that the first

respondent did not rebut the allegations of fraudulent conduct

on her part. So it was, but that did not attenuate the

respondent’s duty as plaintiff in that court to prove his case. In

Khalid Mohamed v. Attorney General14 we Stated that a plaintiff cannot

automatically succeed whenever a defence has failed; he must

prove his case.

The respondent’s claim before the lower court was based on

facts that required strict proof. To the extent that fraud was

alleged, there was need to plead it specifically and to prove it.

On the whole, our view is that this is not a case that could

properly be proved and disposed of on mere affidavit evidence in

an action in chambers commenced by originating summons.

Notwithstanding commencement of an action through a

wrong mode, Order 28 Rule 8 of the Rules of the Supreme Court (White

Book) (1999 edition) allows a judge to deem a matter that has been

commenced by originating summons as having been commenced

by writ of summons. That order reads as follows:

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28/8 - Continuation of proceedings as if cause or matter began

by writ.

(1) Where, in the case of a cause or matter began by originating

summons, it appears to the court at any stage of the
proceedings that the proceedings should for any reason be
continued as if the cause or matter had been began by writ,
it may order the proceedings to continue as if the cause or
matter had been so began and may, in particular, order that
any affidavits shall stand as pleadings, with or without
liberty to any of the parties to add thereto or to apply for
particulars thereof

(3) This rule applies notwithstanding that the cause or matter in

question could not have been begun by writ.

We applied this rule in African Banking Corporation (Z) Limited

(T/A Banc ABC) v. Plinth Technical Works Limited4. We Stated in that case

that:

Where, in a matter begun by originating summons, it appears to the

court that the matter should have commenced by writ of summons, the
court has power under Order 28 Rule 8 RSC at any stage of the
proceedings, to order that the proceedings should continue as if the
matter had been so begun and may, in particular, order that any
affidavits shall stand as pleadings and give further directions on the
conduct of the matter.
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Although, as we have pointed out, the learned judge could

have treated the matter as having been commenced by writ and

given directions as to the further conduct of the matter, she did

not do so. In these circumstances, our views as ventilated in

Chikuta v. Chipata Rural Council1 apply. A wrong mode of

commencement of proceedings was employed. Consequently, the

court had no jurisdiction to proceed to hear a matter which was

wrongly commenced.

If, however, the learned judge had resorted to Order 28 Rule

8 of the Rules of the Supreme Court and deemed the action to

have been commenced by way of writ and clearly noted this fact

and guided the parties accordingly, the act of deeming the

proceeding to have been commenced properly would have saved

the proceedings from suffering the consequences of the court

lacking jurisdiction.

The legal theory here is that the act of deeming, properly

done, transitions the proceedings from the destiny of being null

and void for want of jurisdiction, to new proceedings under the

freshly deemed mode of commencement under which the court

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is clothed with jurisdiction. In the present case there was no

evidence in the record of appeal to suggest that the learned judge

applied her mind to the appropriateness or otherwise of the mode

of commencement employed, let alone to Order 28 rule 8.

There is another matter that we ought to comment upon.

There was a consent judgment obtained in this matter which

touches upon the subject property. That judgment is still

subsisting. Regrettably the parties had proceeded through court

proceedings both here and below without contemplating the

status and effect of that judgment on the rights of the parties.

As the parties return to the drawing board, they may wish

to give this issue some serious reflection.

For the avoidance of doubt, and, perhaps, at the risk of

repetition, our conclusion is that the trial court had no

jurisdiction to deal with the action in the manner that it did

because a wrong mode of commencement was employed and

nothing was done by the trial court in the way of invoking Order

28 rule 8 of the Rules of the Supreme Court (White Book) 1999

edition to save the proceedings. The proceedings before the lower

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court were accordingly a nullity. The appeal is thus misconceived

and it is accordingly dismissed.

We make no order as to costs.

I. C. MAMBILIMA
CHIEF JUSTICE

M. MALI LA M. C. MUSONDA
SUPREME COURT JUDGE SUPREME COURT JUDGE