Charles Mwanza and Ors v Ndola City Council (2014/HP/A038) [2021] ZMHC 123 (29 June 2021)

2014/HP/A038 IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Appellate Jurisdiction) -~ou~R~T -0 - PRINCIPAL F 1uNi,J BETWEEN: CHARLES MWANZA AND APPELLANTS RE GISTRY AND NDOLA CITY COUNCIL RESPONDENT Delivered in open Court by ~e f!on. Mr~stice Mathew L. Zulu, at Lusaka the~~j-~ay oJiJ~ 2021 For the Appellant: For the R espondent: Ms . M. Marebesa, Legal Aid Cou nsel, Legal Aid Board Mr. R. Mwinga, In hou se counsel, Ndola City Council JUDGMENT Cases referred to: 1. Zambia Telecommunications Company Limited v. Aaron Mweenge Mulwanda and Paul Ngandwe(Appeal No. 63 of 2009) 2. Robert Lawrence Ray v. Chitakata Ranching Co Limited(1980) Z. R. 198 3. Nkhata and Four others v . Attorney General( 1966) Z. R.124 - 4. Fearnought Systems Ltd v. Fearnought Systems (Z) Ltd and Robinson Kaleb Zulu(Appeal No. 035 of 2015) 5. Walusiku Lisulo v. Patricia Anne Lisulo( 1998) Z. R. 75 6 . Zambia Breweries Pie v . David Chibwe (Appeal no. _107 of 2012) J1 Introduction This appeal emanates from a ruling of the Lands Tribunal (Tribunal) dated 9 th September, 2015. In that ruling, the Lands Tribunal dismissed the Appellant's application to review their Judgment dated 4 th June, 2014, in which they dismissed the Appellants' complaint. Background The facts giving rise to this appeal are that the Respondent offered the Appellants land in Kaloko A Block after being displaced from Muchinka area. The land was demarcated in 2002 to resettle the displaced squatters. However, the Respondent has not issued the settlers with offer letters. In the meantime, the Respondent has been allocating some of the plots intended for the settlers to foreigners. Pleadings and evidence before the Land's Tribunal The Appellants filed into Court a complaint and an affidavit in support. In their complaint, the Appellants sought a declaration J2 that they were entitled to land situate in Kaloko A Block and an order directing the Respondent to issue offer letters to the Appellants. In their affidavit in support, the Appellants averred that the Respondent offered them the land after being displaced from the Muchinka area. The land was demarcated in March, 2002 to resettle them. The Appellants asserted that the Respondent grabbed some of the farm plots and sold them to foreigners. In resp onse, the Respondent filed into Court an answer and affidavit in support. The affidavit in support averred that it had n ever given the land to the Appellants; hence , they did not offer letters. The Respondent asserts that the Complainants were from the Surya area, and they resettled in the r egion by Cabinet in violation of the approved development plan for Ndola District. When Surya Mining Limited was allocated land in the area, the said mine made a payment ex amino to those wrongly occupying the land. Regarding complainants from Zmart Area, Kaloko A Block, 90 plots were created , and about 90 squatters wer e allocated plots. The Ministry of Agriculture wa s not authorized to create 7 4 more plots by the Respondent in whose jurisdiction the land falls . J3 The Ruling of the Lower Court The Tribunal found that the fresh evidence under Order 39 of the High Court Act does not include evidence available throughout the hearing. The Tribunal found that the receipts and the council minutes were available throughout the hearing and thus did not amount to fresh evidence to justify a review of the Judgment. They also found that firstly, the minutes were public documents available throughout the trial, which the complainants would have obtained the same by way of a diligent search. The Tribunal further found that the new evidence was not material because there was no evidence that the council made recommendations to the Commissioner of Lands to offer the land in dispute to the Complainants based on the receipts and minutes. Secondly, the Tribunal found no evidence that the Commissioner of Lands issued letters of offer to the Complainants based on the new evidence. The Tribunal was of the further view that in any event, the council's recommendations to the Commissioner of Lands are not binding. J4 The Grounds of Appeal The Appellants in their grounds of a ppeal wrongly couched as the Respondent's Grounds of Appeal h as advanced the following grounds: 1. The Lands Tribunal erred Law and in fact when it held that receipts and council minutes were available throughout the hearing when in fact not (sic). 2 . The Lands Tribunal erred Law and in fact when it held that council minutes are public documents which the Complainant could have obtained by way of diligent search without considering that the Respondents were the custodians of the minutes and interested parties in this matter (sic). The Appellant's Heads of Argument The gist of the Appellant's arguments filed into Court on 25th September, 2020, is that the Tribunal erred when it overlooked that the Respondent was the custodian of the receipts showing that 80 of the Appellants had paid the d emarcation fee. The Tribunal also JS I dismissed the minutes, r evealing that the council had recommenced 12 of its 80 members for land offers. Counsel contends that the minutes and the receipts were not accessible to the Appellants because the Respondent had an interest 1n the matter. Consequently, the Appellants had to source the documents from the National Archives who only located the file after delivery of Judgmen t . Counsel contended that earlier reasonable due diligence could n ot have secured the documents. Counsel relied on the case of Zambia Telecommunications Company Limited v. Aaron Mweenge Mulwanda and another1 . The Appellants have adverted to the case of Robert Lawrence Ray v. Chitakata Ranching Co Limited2 wher e Dare h eld that to warrant a review based on fresh evidence; the evidence must have a material effect on the decision of the Court. Counsel contends that the Tribunal opined that the Appellants did not produce evidence to prove that the Respondent through the Ministry of Lands had offered them the land in dispute. Counsel argued that the receipts and minutes were vital because the minutes s how that 12 of the Appellants were r ecommended for land allocation and that the J6 receipts show that 6 Appellants had paid the demarcation fee. Counsel submits that some of the Appellants appearing in the minutes have been issued with offer letters and some certificates of title while the 12 Appellants have been left out. Counsel contends that the allocation was random. Lastly, the Appellants contend that the Tribunal erred on insisting that the Appellants should have produced letters of offer from the Ministry of Lands when the letter to Grandson Shumba, the successful party, was issued by the Respondent who is agents of the Ministry of Lands. The Appellants contend that the Map has a stamp from the Ministry of Lands and was thus approved for the allocation to the occupants. Consideration by this Court I have considered the grounds of appeal and the Appellant's heads of argument. I note that the Respondent has not filed into Court their h eads of argument in response. I will, therefore, proceed to render my decision on the documents on record. I will consider ground one and two together. The Issue in contention is whether J7 the Tribunal erred in law and, in fact, declined to review their Judgment dated 4th June, 2014, and admitted fresh evidence, receipts, and minutes from the Respondent council. An appellate court will not lightly interfere or disturb the findings of fact made by a trial court, except under certain circumstances. The Supreme Court in the case of Nkhata and Four others v. Attorney General3 highlighted the events under which an appellate court may interfere with the findings of fact, and they are as follow: "A trial Judge sitting alone without a jury can only be reversed on questions of fact if (i) the Judge erred in accepting evidence, or (ii} the Judge erred in assessing and evaluating the evidence taking into account some matter which he should have ignored or failing to take into account something which he should have considered, or (iii) the Judge did not take proper advantage of having seen and heard the witnesses, (iv) external evidence demonstrated that the Judge erred in assessing manner and demeanor of witnesses. " (The underlining is for emphasis only.) The preceding case accordingly guides me. As he then was in the case of Roy v. Chitakata Ranch Company Ltd2, Dare J considered J8 when a judgment might be set aside based on fresh evidence. The Court stated the following: Setting aside a judgment on fresh evidence will lie to rescind a judgment on the ground of the discovery of material evidence which would have had material effect upon the decision of the Court and has been discovered since the decision but would not with reasonable diligence have been discovered before. The Supreme Court, in the case of Fearnought Systems Ltd v. Fearnought Systems (Z) Ltd and Robinson Kaleb Zulu4 , enumerated wh at must be established to warrant the exercise of the power of review, and these are: 1. that fresh evidence has been discovered which would have had material effect on the Judgment or decision; (ii) that the evidence has been discovered since the Judgment or decision; 2. (iii) that such evidence could not, with due diligence, have been discovered before; and J9 3. (iv) that such evidence does not comprise events that have occurred for the first time after delivery of Judgment. Further, in the case of Walusiku Lisulo v Patricia Anne Lisulo6 , the Supreme Court dismissed an application to review a judgment because the financial statements the Appellants sought to introduce were not new evidence as they were available throughout the hearing. They could have with proper diligence been discovered. Firstly, I determine whether the receipts and the minutes produced by the Appellants as a basis for the review would have had a material effect on the Tribunal's judgment. I must begin by pointing out that the Appellant has not exhibited the Tribunal's Judgment of 4 th June, 2014. However, I note that the Tribunal has in its ruling on appeal reproduced the portion of its Judgment that the Appellant sought reviewed. In its ruling, the Tribunal found that in the absence of letters of offer or recommendation from the Respondent to the Commissioner of lands recommending the complainants, they could not grant the declaration that the complainants were entitled to the land situated in Kaloko A Block. JlO The minutes show that the council had resolved to recommend some of the Appellants for land allocation in Kaloko A Block even if there were no such letters giving effect to this recommendation. I am of the view that the minutes were of some material value. I will now move on to consider whether the receipts and minutes produced by the Appellants were discovered after Judgment. It is not in contention that these documents existed during the trial, as is also confirmed by the documents' dates. Also , in their arguments, the Appellants have argued that they had to source the document through the National Archives. They contend that the file was only located after judgment. This therefore shows that the Appellants were aware of the existence of the documents prior to the delivery of judgment. The next question is whether the documents could not, through due diligence, have been discovered before? The Appellants have advanced that the documents were not accessible as they were in the respondent's custody who had an interest in the matter. I am , however not satisfied that the Appellant employed due diligence in accessing these documents. I am fortified by the decision of the Jll Supreme Court in the case of Zambia Breweries Plc v. David Chibwe,6 where the following was stated: There is no obligation in civil proceedings for a party to aid its opponent to prove its case in order succeeds. It is a time principle in civil proceedings that it is for a plaintiff to prove its case against the defendant even if it is difficult to do so. The burden of proof lies at all times on the party making the claim and does not shift to the defendant simply because there is need for the defendant to corporate to assist the plaintiff to prove its case.( the underlining is for emphasis only I find that the Appellants did not employ due diligence in assessing the receipts and the minutes. The Appellants could have issued a subpoena against the Respondent to produce the said receipts and minutes. However, the Appellants did not. More so, that the Appellants have argued that the respondents were the custodians of these documents. In the circumstances, I find that the Appellants have failed to prove that the documents could not be discovered with due diligence as the Appellants always knew that these documents existed, and they did not employ due diligence in ensuring that they were produced before Court. J12 In conclusion, I find that the Appellants have failed to meet the threshold to warrant the review of the lower Court's judgment. I, therefore, see no reason to disturb the decision of the Lands Tribunal and, I accordingly dismiss the appeal. I make no order for costs. Leave to appeal is granted. Delivered at Lusaka the ........... day of June, 2021. ~~ MATHEW. L. ZULU HIGH COURT JUDGE I \ I I \ I J13