Faramco Ltd v Camel Freight Ltd and Ors (Appeal 136 of 2016) [2019] ZMSC 314 (28 May 2019)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 136/2016 HOLDEN AT LUSAKA _____ SCZ/8/341/2015 AND CAMEL FREIGHT LIMITED JOHN SIWALE 1st RESPONDENT 2nd RESPONDENT KA VANDA INVESTMENTS LIMITED 3rd RESPONDENT AISHA IBRAHIM LAMBAT THE ATTORNEY GENERAL 4th RESPONDENT 5th RESPONDENT Coram: Kaoma, Kajimanga and Chmyama, JJS. On 7th May, 2010 and 28th May, 2019 For Appellant: N/A For 1st Respondent: Mr. L. Linyama of Eric Silwamba, Jalasi and Linyama Legal Practitioners For 2nd Respondent: N/A For 3rd Respondent: Mr. G. D. Chibangula of GDC Chambers For 4th Respondent: Mr. M. Chitundu of Barnaby and Chitundu Advocates For 5th Respondent: Mr. M. Kapalu of Attorney General’s Chambers JUDGMENT Kaoma, JS, delivered the Judgment of the Court. J2 Cases referred to 1. Newplast Industries Limited v Commissioner of Lands and Attorney General (2001) Z. R. 51 2. Polythene Products Zambia Limited v Cyclone Hardware (2012) 3 Z. R. 3. Amina Moosa Dodia Ragi, Michael Spencer Morel, Candy Marilyn Morel v Michael Tembo - Appeal No. 29 of 2010 4. Union Gold (Zambia) Limited v Attorney General - SCZ Judgment No. 141 of 2016 5. Yakub Falir Muila, Faztla Mulla AHo and Mwila Mumbi Jabi v Mohamed Jabi - Selected Judgment No. 1 of 2018 6. Attorney General v EB Jones Machinist (2000) Z. R. 114 7, Anort Kabwe and Charity Mumba Kabwe v James Daka, Attorney General and Albert Mbazima (2006) Z. R. 12 8. Shadrick Wamusula Simumba v Juma Banda and Lusaka City Council - SCZ Judgment No. 12 of 2013 9. Chikuta v Chipata Rural Council (1974) Z. R. 241 10. Attorney General, Commissioner of Lands, Livingstone City Council and Captain John Mwamulima v Ambex Clothing Manufacturers Limited - Appeal No. 134 of 2013 11. Beatrice Mulamfu v Kelvin Mukuka Mwamba - Appeal No. 80 of 2014 Legislation referred to: 1. Lands Act, Cap 184, sections 13 and 15 2. White Book, 1999 edition, Orders 2/2/4, 15/2, 14A and 33 rule 3 3. Lands and Deeds Registry Act, Cap 185, section 34 4. High Court Act, Cap 27, section 13 5. Lands Tribunal Act, No. 39 of 2010, sections 4 and 16 6. Constitution of Zambia, Article 134 This appeal raises the question whether the High Court has jurisdiction to hear the respondents’ counter-claims which challenge the decision of the Commissioner of Lands to re-enter Stand No. 14695, Lusaka and re-number it as Stand No. 21633, given the provisions of sections 13(3) and 15(1) of the Lands Act, Cap 184. This follows a dismissal by the High Court of the appellant’s preliminary objections on points of law raised under Orders 14A rule 1 and 33 rule 3 of the White Book 1999 J3 The appeal has a long and alarming history, which has resulted in the appellant and the 1st, 2nd, 3rd and 4th respondents all claiming an interest in the subject property. The pleadings and the documents on record show that the original lessee and title holder of the subject property was Badat Ahmed Ibrahim. In May, 1995, he executed a Deed of Transfer in favour of Lambat Ibrahim Hussain and Lambat Aisha Ibrahim (the 4th respondent) and they obtained a certificate of title on 30th May, 1996. On 19th February, 2002 the Commissioner of Lands caused to be issued a notice of intention to re-enter the property due to non-development. A certificate of re-entry was issued on 26th February, 2003. Afterward, the property was allocated to Jimmy Sinkala. He obtained a certificate of title on 11th April, 2003. In May, 2003 Jimmy Sinkala sold the property to Kavanda Investments Limited (the 3rd respondent). On 16th June, 2003, Kalyoto Muhalyo Paluku acting on behalf of the 3rd respondent entered a caveat as an intending purchaser. In August, 2003 the 3rd respondent was granted vacant possession of the property by Jimmy Sinkala as a way of security from trespassers. However, on 27th August, 2003 the State lease and certificate of title issued to Jimmy Sinkala and J5 The 3rd respondent then took out judicial review proceedings in the High Court against the appellant, Attorney-General, Commissioner of Lands and Jimmy Sinkala to challenge the orders of the Subordinate Court. On 14th May, 2004 the High Court granted an order of certiorari quashing the consent judgment and the order of eviction and possession. The directives of the Commissioner of Lands to cancel and renumber the property were also set aside. In an appeal to this Court, we set aside the High Court judgment and directed that a fresh action to impeach the consent judgment had to be commenced by writ of summons since the 3rd respondent was not a party to the consent order. In that matter, the appellant had actually acknowledged that the notice of renumbering and certificate of re-entry were not served on Lambat Ibrahim Hussain and Lambat Aisha Ibrahim contrary to section 13 of the Lands Act. Next, the 3rd respondent issued a writ in the High Court against the appellant, Attorney General, Jimmy Sinkala and Camel Freight Limited (the 1st respondent) with a view to set aside the consent judgment. However, the 1st respondent objected to the action on the basis that it should have been commenced in J6 the Subordinate Court which granted the consent judgment and with the original parties to the action. The High Court upheld the objection and dismissed the matter. Subsequently, Mohammed Yunus Lambat (suing in his capacity as administrator of the estate of the late Ibrahim Hussain Lambat) and Aisha Ibrahim Lambat instituted an action in the Subordinate Court against the appellant, Sterling Motors, the Commissioner of Lands and Attorney General seeking for an order setting aside the consent judgment and the order of possession. The appellant, Commissioner of Lands and Attorney General did not file defences despite being served with court process. The appellant did not even attend the trial. The Commissioner of Lands and Attorney General attended but did not object to the claims. Neither did Sterling Motors. On 14th May. 2010 the Subordinate Court set aside the consent judgment and order of eviction and possession on the basis first, that the Attorney General who was a party to the action did not consent to the judgment, and secondly, that the Commissioner of Lands erroneously and fraudulently cancelled Stand No. 14695 and renumbered it as Stand No. 21633 and pursuant to the consent judgment being challenged offered the J7 land to the appellant. Leave to appeal was granted but there is nothing on the record to show that any appeal was lodged. In the meantime, going by the Lands Register at page 197 of the record of appeal, on 7th June, 2004 the Commissioner of Lands allocated the subject property to the 1st respondent and issued it with a certificate of title. On 2nd July, 2004 the 1st respondent mortgaged the property to John Siwale (the 2nd respondent). On 25th June, 2008 the 2nd respondent registered a consent order from the High Court granting him liberty to take possession of and foreclose on the property. On 5th September, 2008 the 3rd respondent entered another caveat claiming interest as rightful owner. Amidst all this confusion, on 13th November, 2008 the appellant launched the current proceedings in the High Court seeking several declarations and other orders. Briefly, it claims that it is the registered owner of the subject property; that Stand 14695 no longer exists on the lands register as it was cancelled by the Commissioner of Lands; that the 4th respondent’s interest in Stand 14695 extinguished upon re-entry by the Commissioner of Lands; and that the 1st, 2nd and 3rd respondents’ interest in the property no longer exists. J8 The appellant’s claims have been disputed and the 1st, 2nd 3rd and 4th respondents put up individual counter-claims, also claiming individual interest in the subject property. The 3rd and 4th respondents further challenge the re-entry and cancellation and renumbering of the property by the Commissioner of Lands as being illegal and void ab initio for being in breach of mandatory provisions of the law. The Attorney General admits that the notice of intention to re-enter and the certificate of re-entry were null and void as the records at the Ministry of Lands show no proof of service of the notice on the 4th respondent and that her interest in the property did not extinguish upon re-entry nor was the property cancelled or renumbered thus invalidating the appellant’s claim as registered owner of Stand 21633. For the same reason, the other counter-claims are denied. Concerning the 3rd respondent, the Attorney General also avers that Jimmy Sinkala’s certificate of title was cancelled on the basis that it was erroneously issued as he had already been given an alternative plot, and so, he had no legal right to transfer the property to the 3rd respondent. J9 In its reply and defences to the counterclaims, the appellant avers, inter alia, that the property was renumbered and vested in it by the Subordinate Court consent judgment; and that any party aggrieved by the re-entry and renumbering of the property ought to have challenged such decision in the Lands Tribunal pursuant to section 15 of the Lands Act. On 31st July, 2015 the appellant filed the notice to raise preliminary objections on points of law advancing three issues: 1. Whether the 3rd respondent could assert a claim to Stand 14695 purely based on a contract of sale signed with a non-party to the action. 2. Whether the High Court had jurisdiction to hear and determine the 4th respondent’s counterclaim challenging the re-entry of the disputed property by the Commissioner of Lands considering the provisions of section 13(3) and section 15(1) of the Lands Act. 3. Whether the High Court had jurisdiction to hear the respondents’ counter-claims challenging the decision of the Commissioner of Lands to cancel Stand 14695 and to re-number it as Stand no. 21633 bearing in mind the provisions of section 15(1) of the Lands Act. Learned counsel for the appellant argued that section 13(3) of the Lands Act ousts the jurisdiction of the High Court in respect of challenges to certificates of re-entry. Hence, any person aggrieved with the issuance of a certificate of re-entry could only move the Lands Tribunal. In support of his submission counsel cited the cases of Newplast Industries Limited v Commissioner J10 of Lands and Attorney General1 and Polythene Products Zambia Limited v Cyclone Hardware Limited2. Learned counsel for the other parties in response, submitted in a nutshell, that serious issues relating to ownership of the subject property had been raised by the parties which could only be determined at trial; and that the counterclaims, which arose from the same set of facts, challenged the irregular manner the appellant acquired the property. Learned counsel also submitted that the appellant, with full knowledge of the counterclaims, took a fresh step to file defences to the counter-claims, thus waiving any irregularity in the commencement of the counterclaims and was estopped from submitting that the court had no jurisdiction. It was further argued that taking out the counterclaims in the Lands Tribunal would result in multiplicity of actions which is undesirable. The learned High Court judge opined that the provisions of section 15 of the Lands Act are couched in similar words to section 13; and that ordinarily, an aggrieved person had to appeal to the Lands Tribunal, that is, in a situation where the cancellation by the Commissioner of Lands was done in accordance with the law and the aggrieved person had been duly Jll notified by the Commissioner of Lands so that an opportunity was accorded to such a person to make representations. He also opined that the allegations by the respondents that the whole process of cancellation was fraught with fraud could only be dealt with at trial. The judge refused to subscribe to the view that where an allegation{s) of fraud are made, where an aggrieved person had lost a piece of land or the land was stealthily snatched from him and time to challenge the decision of the Commissioner of Lands had lapsed by the time the facts come to the attention of the aggrieved party, the aggrieved party should be remediless. In the words of the learned judge, section 34 of the Lands and Deeds Registry Act, Cap 185 would automatically come into play to give an opportunity to the aggrieved person to be heard. Lastly, the learned judge took the view that section 13 of the High Court Act, Cap 27 endowed him with jurisdiction to administer both law and equity and to deal with the matter on merit. Consequently, he dismissed the preliminary objections. Unhappy with this decision, the appellant lodged this appeal raising three grounds namely: 1. That the court below misdirected itself both in law and in fact when it neglected to address the question whether the High Court J12 had jurisdiction to hear the respondents’ counterclaims in light of the provisions of section 13(3) and 15(1) of the Lands Act. 2. That the court below erred in law and in fact when it held that the respondents’ counter-claims were legitimately before it as the respondents alleged fraud against the appellant and the Commissioner of Lands in the manner the appellant acquired Stand no. 21633. 3. That the court below erred in law and fact when it failed to distinguish between certificate of re-entry entered by the Commissioner of Lands on Stand 14695 in February, 2003 and the cancellation and renumbering of Stand 14695 in August, 2003. Learned counsel for the appellant did not attend the hearing of the appeal having earlier filed a notice of non-attendance. However, he filed heads of argument which we have taken into account. He argued ground 1 alone and grounds 2 and 3 together. The gist of the arguments in ground 1 is essentially the same as advanced in the court below. Hence, we shall not repeat them here. In support of grounds 2 and 3, counsel argued, in brief that by failing to make a distinction between re-entry and cancellation and renumbering, the court misapplied the allegations of fraud as made regarding both decisions by the Commissioner of Lands when no allegation of fraud was made concerning the re-entry. Learned counsel further argued that had the court seen the two issues as separate, it could have appreciated that both the primary issue of re-entry and the secondary issue of cancellation J13 and renumbering could not be determined before it at first instance and the court would have found that section 34 of the Lands and Deeds Registry Act did not apply. Learned counsel for the Is' respondent, in response to grounds 1 and 2, also restated the arguments he made in the court below on waiver, estoppel and multiplicity of actions. In addition, he referred the Court to, inter alia, the case of Amina Moosa Dodia Ragi, Michael Spencer Morel, Candy Marilyn Morel v Michael Tembo3 and section 13 of the High Court Act In response to ground 3, it was argued that the 1st respondent’s counter-claim relate to trespass by the appellant alleging that the property was renumbered which was illegal and void ab initio; and that it was misleading for the appellant to argue that the court in its evaluation of the counter-claims did not distinguish between the re-entry and the cancellation and renumbering of the property. We were urged to uphold the decision of the court below. Learned counsel also supported the holding by the court below that the allegations by the respondents that the whole process of cancellation and renumbering of the property were fraught with fraud could only be dealt with at trial. J14 Learned counsel for the 3rd respondent, submitted in his heads of argument, in response to ground 1, that this Court has already pronounced itself on the issue of whether sections 13(3) and 15 of the Lands Act oust the jurisdiction of the High Court to hear and determine the respondents’ counter-claims. It was argued that it is now settled law that an aggrieved party has the liberty to commence an action relating to land either in the High Court or the Lands Tribunal. The cases of Union Gold (Zambia) Limited v Attorney General4 and Yakub Falir Mulla, Fazila Mulla Allo and Mwila Mumbi Jabi v Mohamed Jabi5 were cited. Counsel further argued that since sections 13(3) and 15 of the Lands Act use the permissive word ‘may’, and not the mandatory word ‘shall’, thus, confirming that these sections do not oust the jurisdiction of the High Court to hear and determine the current land dispute. Further citing section 4 of the Lands Tribunal Act, learned counsel argued that the jurisdiction of the Lands Tribunal must be exercised within the parameters of Article 134 of the Constitution of Zambia which grants the High Court original unlimited jurisdiction to hear and determine any civil proceedings under any law. JIS Counsel sought to distinguish the Polythene Products Zambia Limited2 case, from this case, by agreeing with the court below that ordinarily section 13(3) of the Lands Act could only be relied upon in a situation where the entire process of cancellation and re-entry by the Commissioner of Lands is done in accordance with the law. Counsel contended that the 3rd respondent pleaded allegations of fraud in the manner the appellant acquired the property and in the whole process of cancellation and renumbering of the property. Further, that the 3rd respondent has a catalogue of reliefs relating not only to the challenge of the re-entry. Therefore, the High Court has jurisdiction to hear and determine the matter. In response to grounds 2 and 3, he repeated the explanation by the court regarding the provisions of sections 13(3) and 15 of the Lands Act; section 34 of the Lands and Deeds Registry Act; and section 13 of the High Court Act. In his oral submissions, at the hearing of the appeal learned counsel added that the decisions of this Court subsequent to the Polythene Products Zambia Limited2 case, confirm that the High Court has jurisdiction to deal with the respondents’ J16 counter-claims; and that later decisions of this Court prevail over the Polythene Products Zambia Limited2 case which is no longer good law. In reply to the 1st respondent’s arguments, counsel for the appellant insisted that the High Court has no jurisdiction to entertain the counter-claims; that the appellant did not waive its right to challenge the want of jurisdiction; and that the issue of waiver, which is in fact a new issue, sought to contradict the provisions of sections 13(3) and 15(1) of the Lands Act and to invoke an estoppel against a statute contrary to our decision in the case of Attorney General v EB Jones Machinist6. On the issue of multiplicity of actions, it was contended that this contradicts the procedure for challenging a decision of re­ entry by the Commissioner of Lands set by sections 13(3) and 15(1); and that the court erred when it abrogated the position of the law to assume jurisdiction to determine the counter-claims. On ground 3, it was argued, in short, that the court failed to appreciate that the alleged fraud was not proved. Thus, the court wrongly invoked the provisions of section 34 of the Lands and Deeds Registry Act. We hasten to say that we do not appreciate how allegations of fraud could be proved at preliminary stage. J17 We have considered the grounds of appeal and the arguments by the appellant and the 1st and 3rd respondents. The 2nd, 4th and 5th respondents did not file any heads of argument for our consideration. As we said at the beginning of our judgment, the real issue raised by this appeal is whether the High Court has jurisdiction to hear the respondents’ counterclaims in light of the provisions of section 13(3) and 15(1) of the Lands Act. In his submissions learned counsel for the appellant submitted that the court has no jurisdiction to entertain the counter-claims which should have been taken out in the Lands Tribunal by way of appeal while learned counsel for the respondents submitted that the court does have the jurisdiction. The first question is whether the appellant is estopped from making an objection that the court has no jurisdiction to determine the counter-claims. Learned counsel for the appellant submitted that an objection to jurisdiction can be raised at any stage of the matter. That where the court lacks jurisdiction, the merits of the case and or issues of multiplicity of actions, are irrelevant and the parties cannot consent to confer jurisdiction on the court. J18 We agree with the submissions of learned counsel for the appellant that an objection which goes to the jurisdiction of the court can be taken at any stage of the matter and that the parties cannot consent to confer jurisdiction on the court. Further, we are of the view that where the court has no jurisdiction to hear a matter the court cannot use the principles on waiver or estoppel or multiplicity of actions to clothe itself with jurisdiction. The pleadings in this case are very clear. The appellant seeks, as its main relief, a declaration that it is the registered owner of the subject property. It also seeks declaratory orders that Stand 14695 no longer exists on the Lands Register as it was cancelled by the Commissioner of Lands; that the 4th respondent’s interest in Stand 14695 extinguished upon re-entry by the Commissioner of Lands; and that the 1st, 2nd and 3rd respondents’ interest was in Stand 14695 which no longer exists. All the respondents dispute these claims. In particular, the 4th respondent avers in her defence that the decision of the Commissioner of Lands to re-enter the property was illegal and null and void for non-compliance with the mandatory provisions of the law. She then put up the counterclaim that is being attacked. So did the other respondents. J19 We held in the cases of Anort Kabwe and Charity Mumba Kabwe v James Daka, Attorney General and Albert Mbazima7 and Shadrick Wamusula Simumba v Juma Banda and Lusaka City Council8, that the purpose of the requirements under section 13 of the Lands Act is to afford a lessee who is in default an opportunity to dialogue with the Commissioner of Lands with an intention to extend the period within which he is required to develop the property. We also held that a repossession effected in circumstances where a lessee is not afforded such opportunity is not valid and the Commissioner of Lands cannot be justified in making the land available to another developer. Section 13(3) of the Lands Act provides that a party aggrieved by a certificate of re-entry entered in the register may within 30 days appeal to the Lands Tribunal for an order that the register may be rectified. In contrast, section 15(1) provides that any person aggrieved with a direction or decision of a person in authority may apply to the Lands Tribunal for determination. It is quite clear that although section 13(3) specifically provides for an appeal to the Lands Tribunal, as submitted by learned counsel for the 3rd respondent both sections use the permissive word ‘may’ and not the mandatory word ‘shall’. J20 Now, the appellant’s argument that the respondents had no option but to appeal to the Lands Tribunal in their challenge of the certificate of re-entry and cancellation and renumbering of the subject property was predicated on the Polythene Products Zambia Limited2 case. Indeed, we held in that case (following our decisions in the Newplast Industries Limited1 case and Chikuta v Chipata Rural Council9), that the 1st defendant being aggrieved by the certificate of re-entry on stand 12094 had no option but to appeal to the Lands Tribunal in its challenge of the certificate of re­ entry; and that on the facts of that case, the learned trial judge had no jurisdiction to entertain the counterclaim on fraud and negligence, which was commenced by writ of summons. However, we had occasion again, seven years later, in the case of Attorney General, Commissioner of Lands. Livingstone City Council and Captain John Mwamulima v Ambex Clothing Manufacturing Limited10 to consider the question of whether section 13(3) of the Lands Act has served to oust the jurisdiction of the High Court in land matters. In our judgment delivered on 15th November, 2017 we held, applying our decision in the Union Gold (Zambia) Limited4 case J21 that the High Court's jurisdiction is not ousted by the Lands Tribunal in land matters and that an aggrieved party can choose between proceeding in the High Court or the Lands Tribunal to have his grievances redressed. Therefore, we found no merit in the argument that the matter was improperly commenced. In view of the above, the core issue raised by this appeal is settled and we find that the respondents can maintain their counterclaims in this action. Obviously, we have restated the dual jurisdiction of the High Court and Lands Tribunal in land matters in other cases such as Beatrice Mulamfu v Kelvin Mukuka Mwamba11 and Yakub Falir Mulla and others v Mohamed Jabi5 cited by learned counsel for the 3rd respondent. On the particular facts of this case, which we deliberately set out in detail, we find no basis for faulting the learned High Court judge’s conclusion that the respondents’ counterclaims, both challenging the re-entry and the cancellation and renumbering of the subject property are legitimately before the court and that it has jurisdiction to hear the matter. Suffice to add that at the trial, even without the respondents’ counterclaims, the appellant would have to establish that it legally acquired the subject property and that J22 the re-entry on one hand and the cancelation and renumbering of the property on the other hand, were lawfully done by the Commissioner of Lands. In all, we find no merit in the three grounds of appeal. The appeal is hereby dismissed. It is ordered that the appellant do pay the 1st and 3rd respondents’ costs to be taxed in default of agreement. R. M;C. KAOMA SUPREME COURT JUDGE C. ANGA SUPREME COURT JUDGE J. CHIWAjWA SUPREME COURT JUDGE