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Chishala Karabasis Nivel & Another v Mwale (Appeal 161 of 2015)  ZMSC 321 (25 September 2018);
Land Law – Joint tenancy vs tenancy in common – Which one applies in the absence of express stipulation
Civil procedure – Mode of commencement of action – Originating summons to be used where rule or statute so provides, or matter suitable for determination in chambers
Civil procedure – Mode of commencement of action – Whether originating summons can be used where there is a dispute of fact
Civil procedure – Imputation of forgery or fraudulent conduct – Fraud to be distinctly alleged and proved
Civil procedure – Effect of wrong mode of commencement on proceedings
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”).
The 2nd Appellant is the estranged wife of the Respondent, and co-owned the Property with the Respondent. The certificate of title did not indicate the nature of the shared ownership, in particular, whether they were tenants in common or joint tenants.
The Respondent then relocated to England where he was in gainful employment. While the Respondent was away in England, the 2nd Appellant had a financial obligation to a company called Brafuss Limited (“Brafuss”) associated with or owned by the 1st Appellant. The financial obligation culminated in a law suit in the High Court at the instance of Brafuss under cause No. 2011/HP/907, which suit led to the settlement of a consent order. In terms of that consent order the 2nd Appellant's indebtedness in the sum of K450,000 to Brafuss, was repaid through the assignment of the Property to the 1st Appellant, assessed at a selling price of K750,000, with the sum of K300,000 being paid to the 2nd Appellant in cash. The transfer of the property was subsequently registered in the Lands and Deeds Registry at the Ministry of Lands.
The Respondent commenced an action against the Appellants by way of originating summons. He alleged that the conveyance of the Property was without his knowledge and consent as co-owner; that the 2nd 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.
The learned High Court judge evaluated the evidence and upheld the Respondent's claim. She found that the 2nd 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 1st 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 1st Appellant. Furthermore, the said power of attorney was neither authenticated nor registered as required by law, thus making the document null and void.
The 1st Appellant appealed.
1. The distinction between the two forms of common ownership is significant. A joint
tenancy is characterised by the presence of the four unities, namely unity of title, unity
of possession, unity of time and unity of interest. All these are 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.
Although the certificate of title did not state that the 2nd Appellant and the Respondent
were joint tenants, they were such tenants by operation of section 51 of the Lands and
Deeds Registry Act.
2. In terms of Order 6 Rule 1 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. Where a matter is commenced using a wrong
mode, the court will have no jurisdiction. Where the mode of commencement is
prescribed under a statute, such mode of commencement must be followed. Chikuta v.
Chipata Rural Council (1974) ZR 241 and New Plast Industries v. Commissioner of
Lands and Attorney General SCZ Judgment No. 8 of 2001 applied.
3. Order 30 rule 11 of the High Court Rules which provides for commencement of a matter
by 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.
4. The Respondent imputed forgery or fraudulent conduct on the part of the 2nd 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.
Sableland Zambia Ltd. v. Zambia Revenue Authority (2005) ZR 109, Patel and Another
v. Monile Holdings Company Ltd (1993-1994) ZR 20 and Mazoka and Others v.
Mwanawasa and Others (2005) ZR 106 followed.
5. 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 were accordingly a nullity.