Brian Banda Lupasa v Sipiwe Sinda Mulomba Ngoma and Ors (2019/HP/0675) [2024] ZMHC 283 (17 December 2024)

IN THE HIGH COURT FOR ZAMBIA 2019/HP/0675 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: BRIAN BANDA LUPASA AND UCOFZ COURI OJ· ZA PR!I' :~!PAL 1 7 DEC 212➔ SIPIWE SINDA MULOMBA MWEEMBA MUTINTA THE COMISSIONER OF LANDS THE ATTORNEY GENERAL PLAINTIFF I ST DEFENDANT 2 ND DEFENDANT 3RD DEFENDANT 4 TH DEFENDANT Bef~re the Honourable Mrs. Justice R. Chibbabbuka on the 17t h day of Decembe r, 2024 For the Plaintiff: Mrs. G. K Nkonde, Messrs Grace & Partners For the 1st Defendant: No appearance For the 2 11d Defendant: :tvlr. M. Khunga & Mr. B. J Mulenga, Messrs For the 3rd & 4 th Defendant: Mrs. G. M Muyunda, State Advocate Barnaby, Chitundu & Khunga Advocates RULING Legislation referred to: High Court Act, Chapter 27 of the Laws of Zambia Rules of the Supreme Court (The White Book), 1999 Edition Other works re fe rred t o: Zambian Civil Procedure Commentary and Cases, Volume 1, Patrick Matibini, LexisNe:xis, 2017 Rl In opposing the application counsel for the 2nd defendant, indicated that although they had not filed in an affidavit in opposition on behalf of the 2 nd defendant, they wanted to raise an objection on a point of law. Counsel argued that their objection was on th e proposed amendment which is essentially an addition of a relief by the plaintiff which is misplaced at law. That this is because the Commissioner of Lands who exercises functions and implements provisions of the Lands Act, Chapter 185 of the Laws of Zambia has no jurisdiction to su bdivide land. Therefore, to seek an Order to direct the said Commissioner of Land s to do what he cannot do at law is a misplacement, that a litigant ought not to use the court to obtain orders that are legally defective. It was counsel's submission that in any event, with or without the addition of that relief, their position is that relief number 9 is sufficient in the circumstances and that it is needless to seek an addition of a relief that is legally jau ndiced. Cou nsel prayed that the application be dismissed with costs. Counsel for the 3rd and 4 th defendants, equally objected to the application by the plaintiff and added that the writ of summons and statement of claim does not disclose any cause of action as against the 3rd and 4 th defendants. Therefore, that in as much as there is relief being sought to direct the Commissioner of Lands to subdivide the land, which legally is not attainable at law, there is practically no cause of action against the 3 rd and 4 th defendants. On this basis counsel prayed that the said application be dismissed with costs. In reply, counsel for the plaintiff contended that the Commissioner of Lands stands in a better position of having final authority on m atters affecting land which is a subject of a statu tory lease. That in any event, the affidavit has other amendm ents proposed hence the application should not be dismissed. 6.0 THE DECISION OF THE COURT I am indebted to all counsel for th eir arguments which this court has R3 .. carefully considered. It is trite la,v that the mrun reason for allowing an amendment to pleadings is to facilitate the determination of the real question in controversy between the parties to the proceedings. A perusal of the proposed amendments to the writ of summons and in particular the statement of claim under paragraphs 5 and 15 reveals that the party in issue is being particularized. Then relief under paragraph (vii) which is the relief in contention is couched as follows: "Alternatively for an order directing the Commissioner of Lands to subdivide the said land in equal shares between the parties as the structure herein has only been constructed on a portion of land." In relation to the additional relief under paragraph (vii), I agree with the arguments advanced by counsel for the 2n d , 3rd and 4 th defendants, that an order directing the Commissioner of Lands to subdivide land that it has already granted by way of a lease is untenable at law. Were this a situation where the land in issue was yet to have been offered by the Commissioner of Lands or had been reclaimed by the Commissioner of Lands by way of a re entry, then the relief sought by the plaintiff would be tenable at lav.r. The learned author of Zambian Civil Procedure Commentary and Cases Volume 1, Patrick Matibini at page 699 cites Takwani Civil Procedure wit h Limitation Act, 1963 222 for the principles that should be borne in mind by the court in exercising its discretion to amend pleadings: "(a) All amendments should be allowed which are necessary for determination of the real controversies in the suit; (b) The proposed amendments should not alter and be a substitute for the cause of action on the basis of which the original was issued; (c) Inconsistent and contradictory allegations, in negation to the admitted position of facts, should not be allowed to be incorporated by means of amendment; R4 - (d) Proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs; (e) An amendment of a claim or relief barred by time should not be allowed; (f) . No amendment should be allowed which amounts or results in defeating a legal right to due to the opposite party on account of lapse of time; (g) No party should suffer on account of technicalities of law and the amendment should be allowed to minimize the litigation between parties; (h) The delay in filing applications for amendments of pleadings should be properly compensated by costs; and (i) An error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendments of pleadings. The preceding principles are simply illustrative, and not exhaustive." In applying the foregoing principles, a perusal of the writ of summons and statement of claim reveals that the real controversy in issue is whether the 2 nd defendant fraudulently obtained the property in issue from the Commissioner of Lands. This is a matter which will have to be determined at trial and for that reason I do not agree with counsel for the 3 rd and 4 th defendant's position that there is no cause of action as against the 3 rd and 4 th defendants. Allegations of fraud have been levelled against the 2 nd defendant which according to the plaintiff influenced the 3 rd defendant's actions and as such the 3 rd and 4 th defendant will have to defend its action in the n1atter. As such the proposed relief under paragraph (vii) does not address the real controversy in issue. The upshot of this matter therefore is that the plaintiff's application is allowed, to the extent that paragraphs 5 and 15 of the statement of claim be amended RS - as prayed. However, the amendment to the plaintiffs claims to include the relief as tabulated under paragraph (vii) is denied. Costs of this application are in the cause. An order for directions will now ensue to enable the parties prepare for trial. Leave to appeal is HEREBY granted. Delivered at Lusaka 1s RE ll l.l. C. .":aay-OT'· ... ..... ... ....... ................... . 2024 HIGH COURT OF ZAliJiSIA . n,;._:z A~ ?' · ~ 7 OEC ~D~'I ~ ~ KA. J HIGH COURT JUDGE RG