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Rural Development Corporation Ltd v Bank of Credit and Another (S.C.Z. Judgment No. 8 of 1987) [1987] ZMSC 14; (1987) Z.R. 35 (S.C.) (23 April 1987)

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RURAL DEVELOPMENT CORPORATION LTD v BANK OF CREDIT AND COMMERCE (Z) LTD (1987) Z.R. 35 (S.C.)

SUPREME COURT CHOMBA, GARDNER AND SAKALA, JJ.S. 2ND MARCH,1987 AND 23RD APRIL, 1987. (S.C.Z. JUDGMENT NO. 8 OF 1987)

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Judgment

SAKALA, J.S.: delivered the judgment of the court. When we heard this appeal we allowed it and granted leave to the appellant to file a memorandum of appearance and an affidavit in opposition within 30 days. We also ordered that the case be sent back before the commissioner for hearing on the merits. We further ordered that costs be paid by the appellant to the respondent both in this court and in the court below. We indicated then that we would give our reasons later and this we now do. p36 This is an appeal against a ruling of a High Court commissioner directing the removal of a caveat entered by the appellant on 13th March 1984 at the Lands and Deeds Registry on Farm No. 4384 situated in Mumbwa District of the Central Province. For convenience we will refer to the appellant as the defendant and the respondent as the plaintiff, which they were in the court below. By an originating summons supported by an affidavit, both filed in the Principal Registry on 8th April,1986, The plaintiff applied for the removal of the caveat. The hearing of the summons was set down for 18th June,1986, at 0900 hours by a notice of appointment dated 9th May,1986. From the proceedings on record it is quite clear that counsel for the defendant was served with the originating summons and the notice of appointment. The defendant did not enter appearance and did not file any affidavit in opposition. The record discloses that counsel for the plaintiff presented his case. At the end, counsel for the defendant explained the reason for not filing an affidavit in opposition, namely that he did not receive the affidavit in support of the summons apart from the summons itself. Counsel for the defendant then raised a preliminary point that the court had no jurisdiction to entertain The application on the grounds that the action was wrongly before the court and not in conformity with the provisions of Order 6 Rule 1(3) of the High Court Rules Cap.50, and that the plaintiff had commenced a similar action under cause No. 1986/HP/125 before Commissioner Phiri who dismissed it for not complying with the provisions of Order 6 of the High Court Rules, Cap.50. Counsel for the defendant argued and submitted before the learned High Court commissioner that the application was wrongly before the court because the procedure for the removal of a caveat had always been by way of notice of motion in accordance with Order 6 Rule 1(3) of the High Court Rules. He pointed out that Section 81 (1) of the Lands and Deeds Registry Act, Cap.287 providing for the removal of a caveat did not provide the procedure to be adopted and to the extent that that section was silent on the procedure to be used in an application for the removal of a caveat, the only available procedure is that provided under Order 6 Rule 1 (3) of the High Court Rules Cap.50 namely by way of an originating notice motion. Counsel further submitted that the plaintiff having unsuccessfully brought a similar application by way of a summons the present application was an abuse of process. Counsel contended that on the authority of the case of Chikuta v Chipata Rural Council (1) non-compliance with Order 6 Rule 1 deprives the court of jurisdiction to entertain any application wrongly commenced. He submitted that the application must fail for procedural reasons. Reacting to the submissions by counsel for the defendant in the court below, counsel for the plaintiff pointed out that the defendant having not entered a memorandum of appearance as required by law, he should not be heard and whatever had been said on behalf of the defendant was a nullity. Conceding that Section 81 Cap.287 provides no procedure for the removal of a caveat, he contended that the use of the phrase in that section namely "summons the caveator" suggests that the procedure to be adopted is that provided under Order 6 rule 1 (2) of the High Court Rules providing for an originating summons. He submitted that as a matter of practice p37 caveats leave been removed by way of an application by an originating summons. Turning to the similarity of actions counsel contended that, although the application involved the same caveat the parties were different. He argued that if the court found that the action had been wrongly commenced it had power to amend the summons. For this argument counsel referred the High Court commissioner to this court's decision in the case of Appolo Refrigeration Services Company Limited v Farmers House Limited (2) in which an action for possession of certain business premises was commenced by an originating notice of motion and, this court having pointed out that an originating notice of motion was not the proper process for a landlord claiming possession, an order was made to effect the necessary amendment. The learned commissioner in a detailed ruling carefully considered the submissions by both learned counsel and held that, notwithstanding that section 81 (1) of the Lands and Deeds Registry Act Cap.287 was silent on the procedure to be adopted when summoning a caveator to court, the issue of removing a caveat is one which may be disposed of in chambers in accordance with Order 30 (11) of the High Court Rules, Cap.50 and proceeding by way of an originating summons was a correct procedure. The learned commissioner having inspected cause No. 1986/HP/125 observed that the defendant in that case was different and the property was different. She held that the action in that case having involved a different defendant and different property was not similar. The learned commissioner, therefore, directed that the defendant having not entered appearance and there having been no affidavit in opposition the caveat entered by the defendant be removed. The defendant has appealed against that ruling to this court. On behalf of the defendant three written grounds of appeal were filed. These are: the learned commissioner erred in law in holding that "Notwithstanding that Section 81(1) of Cap.287 is silent on the procedure to be adopted when summoning a caveator to court, the subject matter of removal of a caveat is one which may be disposed of in chambers under Order 30 Rule 11 (j) a party is, therefore, in order to proceed by way of an originating Summons" contrary to the provisions of Order 6 Rule 1 (3) of The High Court Rules; the judgment of the Supreme Court in the case of Chikuta v Chipata Rural Council (1) at page 243 line 40 has a lacuna in it which ought to be cured; and ground three is that the learned commissioner erred in law in failing to adjourn the proceedings so as to avail the appellant an opportunity to file an affidavit in opposition in a bid to contest the action on the merits in accordance with the provisions of Order 33 (1), alternatively Order 33 Rule 3 of the High Court Rules. Mr Banda on behalf of the plaintiff argued and submitted that the learned trial commissioner having rightly conceded that the Lands and Deeds Registry Act, Cap. 287 does not provide for the procedure of summoning a caveator, she should have then sought recourse to the High Court Rules as to the procedure that should have been adopted in this case. He submitted that the application should have been by way of an originating notice of motion in terms of Order 6 rule 1(3) of the High Court Rules. After Mr Banda was referred to Order 5 Rule 3 of the White Book 1985 edition under the heading "Proceedings which must be begun by originating summons", he conceded that in terms of that order an originating summons was the proper form to commence proceedings in the present action. Mr Banda also argued that the learned p38 commissioner erred by failing to adjourn the case when counsel for the defendant had made known to the court the reasons for not filing an affidavit ire opposition namely that he was not in receipt of the affidavit in support of the summons. Counsel contended that the court should have allowed time to file an affidavit in opposition instead of proceeding to resolve the issue of whether or not an affidavit in support had been served. He submitted that, without hearing the defendant, justice was not done because the defendant was not given an opportunity to show cause why the caveat should not be removed. He asked the court to allow the defendant to file a memorandum of appearance and for the matter to be sent back for re-trial while ordering the defendant to bear the costs. Mr Mwansa on behalf of the plaintiff at first contended that although counsel for the defendant had conceded that an originating summons was the proper form of commencing proceedings in this case, he objected to the request for a re-trial, because justice must be seen to support a non-defaulting party. He pointed out that in the instant case the appellant did not enter a memorandum of appearance and counsel did not ask for an adjournment. However, after further consideration he agreed, and fairly so, that justice in this matter was not done as it was not decided on the merits, and he consented to the matter being re-heard. We have very carefully considered the submissions by both counsel. Mr Banda on behalf of the defendant has properly conceded, and we agree with him, that an originating summons is the proper form for commencing proceedings for the removal of a caveat. This is clearly supported by the wording of Section 81 (1) of the Lands and Deeds Registry Act which reads: "(1) Such Registered Proprietor or other interested person may, if he thinks fit, summon the caveator, or the person on whose behalf such caveat has been lodged, to attend before the Court or a Judge thereof to show cause why such caveat should not be removed." In our view the case of Chikuta v Chipata Rural Council referred to by counsel in the written grounds of appeal and the written heads of argument and submissions has no relevance to the facts of the present action. That was a case seeking a declaration by way of an originating summons that the appellant was still employed. The facts of the case clearly showed that the action should have been commenced by writ as it necessitated the hearing of oral evidence in a proper trial, when usually in applications by way of originating summons the evidence is by way of affidavits. In any event Order 30 Rule 11 of the High Court Rules, Cap. 50 clearly sets out the business to be disposed of in chambers. In addition to that business, matters which under any other rule or by statute or by the law and practice for the time being observed in England and applicable to Zambia, may also be disposed of in chambers. Order 5 Rule 3 White Book (1985 edition) under the heading "Proceedings which must be begun by originating summons" reads as follows: "(3) Proceedings by which an application has to be made to the High court or a judge thereof under any Act must be begun by originating summons except where by these rules or by or under any Act the application in question is expressly required or authorised to be made by some other means.'' p39 We are satisfied that the present proceedings having commenced by an application to the High Court under an Act, namely the Lands and Deeds Registry Act, Cap. 287, they had been properly commenced by an originating summons. We are also satisfied that on account of the conduct of counsel for the defendant in the court below in failing to enter appearance and in failing to file an affidavit in opposition and by also failing to make a proper application for an adjournment to enable him to enter appearance and file an affidavit in opposition, the application was not heard on the merits. We are of the opinion that justice in this matter can only be done by having the matter heard on the merits. But we must observe on the other hand that, had counsel raised his preliminary objection before counsel for the plaintiff presented his case, the matter would have been resolved there and then, and the action would have probably proceeded on the merits. On the other hand even if counsel for the defendant had succeed on his preliminary point (which in our view he could not) the court on the authority of Appollo Refrigeration Services Company Limited v Farmers House limited (2) should only have effected the necessary amendment and not dismissed the action. But under Order 11 Rule 22 of the High Court Rules, Cap. 50 the defendant, having been served with an originating summons, was required to enter an appearance before being heard. It was for the foregoing reasons that we allowed the appeal and ordered that the action be re-tried on the merits by the High Court commissioner. We must emphasise that before the defendant is heard he must first enter appearance and file an affidavit in opposition if any. Appeal allowed .

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