THE Supreme Court has ordered the Lusaka High Court to commence a retrial before a different judge a matter where the lower court ruled against Beatrice Mulako Mukinga who is contesting the sale of the matrimonial property by her former husband Kevin Clifford Fuller.
Ms Mukinga had appealed to the Supreme Court against the High Court judgment that ruled that Stand Number 1944 in Kitwe which was matrimonially owned by Mr Fuller and Ms Mukinga was dully bought by Amber Louise Guest.
In the long court battle, Ms Mukinga after discovering that the matrimonial property from which she had 1,500,000 shares had been fraudulently sold, registered a caveat on the property but her former husband proceeded to sell the property to Amber Louise Guest.
In the majority Supreme Court ruling, Justices Hilda Chibomba and Munalula Lisimba ordered that the High Court should commence retrial of the case between Ms Mukinga and Amber Louise Guest as the first defendant, Milan Trbovic, the second defendant and the Attorney General as the third defendant.
The Supreme Court observed that the matter should be redirected to the High Court because of a number of contentious issues that were raised in the lower court.
In June last year, the Lusaka High Court ordered the State to produce a record of proceedings of the disciplinary committee in a matter in which Ms Mukinga had reported High Court Judge Nicola Sharpe Phiri to the Law Association of Zambia (LAZ) for gross professional misconduct and dishonest transactions when she was a lawyer.
Ms Mukinga has charged that Justice Sharpe Phiri and her law firm Sharpe & Howard Legal Practitioners were professionally at fault for ignoring both the High Court and Supreme Court judgments on property number 1944 in Kitwe which was at the time a subject of matrimonial proceedings before it was fraudulently sold.
And the Supreme Court has now ordered that it has come to the inevitable conclusion that a number of contentious issues were raised in the High Court that could not be properly resolved by affidavit evidence because they required viva-voce evidence.
The Supreme Court judgment signed by Justices Chibomba and Lisimba ruled that it was important to find out how the caveat registered by Ms Mukiinga on the property in question was removed and by whom.
The Supreme Court ordered that there was need to know how the Registrar of Lands managed the actions or omissions over the entries on the Lands Registrar and the changes that were made on Stand Number 1944 in Kitwe. It has been ruled that the High Court should also determine whether Amber Louise Guest had notice of Ms Mukinga’s interest in the property at the time of sale to Milan Trbovic.
The Supreme Court ruled that all the contentious issues that were raised in the High Court should be redirected because they could only be settled through the viva-voce evidence which required cross-examination.
“The cross examination will give the trial court the opportunity to observe the demeanour of the witnesses so as to aid the court to make proper findings upon which it can base its conclusion. Therefore, as much as we abhor remitting records back to the court below and the agony and inconvenience the parties will be put to, the interest of justice, however, overrides this.
“On the basis of the above we order that this appeal is allowed. We order that the records be remitted back to the High Court before a different judge for hearing,” the Supreme Court ruled.