Chieftainess Shimukunami and Anor v Alfred Kaira (Suing as Administrator of the estate of the Late Gulften Kaira) (Appeal No. 172/2018) [2019] ZMCA 442 (29 August 2019)

-. IN THE COURT OF APPEAL FOR ZAMBIA Appeal No. 172/2018 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: CHIEFTAINESS SHIMUKUNAMI MELOS MABENGA AND lg 4{fG lO 1 s-r APPELLANT 'lg 2 ~D APPELLANT :: ,:s. I ALFRED KAIRA (Suing as Administrator of the estate of the Late Gulften Kaira) RESPONDENT CORAM : Kondolo, Makungu and Chishimba, JJA 21 s t August, 2019 and 29th August, 2019 For the Appellants : Mr. N. Simwanza of Messrs Noel Simwanza Legal For the Respondent : Mr. D. Mazumba & Mrs. R. Mweemba of Messrs Douglas & Partners Practitioners JUDGMENT CHISHIMBA, JA, delivered the judgment of the Court CASES REFERRED TO: 1. Vincent Musukuma & Others v. Major Baxter Chibanda (SCZ Judgment No. 33 of 2014 2 . Justine Chansa v. Lusak a City Council SCZ Judgment No. 29 of 2007 3. Nkhata a nd Four Others v. Attorney Gen eral (1966) ZR 124 4. Sailas Ngowani & 6 Others v. Flamingo Farm Limited Selected Judgment No. 5of2019 5. Victor Zimba v. Elias Tembo, Lusaka City Council & The Commissioner of Lands Appeal No. 26 of 2016 LEGISLATION AND OTHER WORKS REFERRED TO: 1. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia -J2- 2 . Bryan A. Ga rner (Ed). Black's Law Dictionary, 9 th Edition. Thomson West: USA, 2009. 3. Elizabeth A. Ma r tin (Ed.), The Oxford Dictionary of Law, 5 th Edition, Oxford University Press INTRODUCTION 1. This is an appeal against the judgment delivered by La dy Justice C. B. Maka-Phiri in the court below declaring that the Respondent is the owner of a property known as Kaira and Sons Farm. 2. The appeal raises the issue of whether a Chief/ Chieftainess can arbitrarily repossess customary land earlier allocated to a subject. 3. The Appellants also challenge the findings of fact m a de b y the lower court to the effect that the Respondent is the rightful owner of the land in dispute. FACTUAL BACKGROUND 4. The Respondent, in his capacity as administrator of the estate of the late Gulften Kaira, commenced an action against the Appellants in the lower court seeking a d eclaration that h e was the rightful owner of the farm known as Kaira and Sons Farm in extent of 250 hectares. He further sought an order preventing the -J3- Appellants from interfering with his quiet enjoyment of the property in question. 5. A summary of the Respondent's evidence in the lower court is that his father, Gulf ten Kaira, was allocated the land in question by the late Chieftainess Shimukunami in 1986. By 1987, Gulften Kaira had made several improvements to the land, namely clearance of 30 hectares of the land, erecting of three houses and mounting of bridges. 6. In 1994, Gulften Kaira was issued a permit of occupancy of the land by the late Chieftainess Shimukunami. It was on that basis that the late Gulften Kaira started paying personal levy to the local District Council at Lufwanyama from 1995 to 1997. 7. According to the Respondent, the 'land dispute' arose after the Chieftainess that granted his father the land died. A new Chieftainess was installed. In about 2009 the farm was invaded and occupied by persons claiming that the Chieftainess had directed them to occupy part of the Respondent's land. Efforts made to settle the matter amicably proved futile. DEFENCE BY THE APPELLANTS 8. The Appellants in their defence averred that the late Gulften Kaira was only granted an occupation permit by Chieftainess -J4- Shimukunami for which he paid council levy up to 1997. According to the Appellants, the permit expired upon the death of Gulften Kaira and the land which was allocated to him remained unoccupied and undeveloped, save for a portion allegedly used by the plaintiffs relatives to cultivate marijuana. 9. The Respondent's evidence was as pleaded in the statement of claim and will not be repeated. 10. The l stAppellant testified in the court below that on her ascendency to the throne in 2 009, she had instructed a village headman to find and secure a portion of land for her. The land in issue was consequently identified. There was nothing on the land save for dilapidated structures. 11. The 1st Appellant stated that following the death of Gulften Kaira, no one claimed the land in question. She further stated that the power to allocate land was the preserve of the Chief. In addition, that no payments in respect of levy to the local authorities was made for over 10 years by the Respondent. 12. Attempts to obtain title to the land in issue have failed as the Respondent has not obtained consent from the 1st Appellant. Further, that the Respondent only obtained letters of -JS- administration as administrator of the estate of the late Gulften Kaira when this action was commenced. 13. The 1st Appellant conceded that the late Gulften Kaira was allocated 250 hectares of land. However, it was undeveloped and that was contrary to the chiefdom rules. The 1s t Appellant consequently wrote a letter to the local Council to revoke the permit. DECISION OF THE LOWER COURT 14. The trial court found as a fact that Chieftainess Shimukunami had allocated 250 hectares of land to the late Gulften Kaira in 1986. In 1994, he was granted a permit for occupation by the Ndola Rural District Council subject to certain conditions. The conditions were not availed to the Court. 15. The land in dispute was held under customary tenure. Further, that while the use and occupancy rights under this type of tenure may be extinguished by death or abandonment, the rights can devolve to successors. 16. While a Chief may revoke a permit of occupation of land, the same must be done correctly. The subject ought to be notified of the decision to revoke the permit and the subject must be given -J6- an opportunity to be heard before a final decision is made. She went on to hold that arbitrary dispossession of land duly allocated would be in violation of the rules of natural justice. 1 7 . The trial court found that the Appellants took over the land in question before the permit was revoked. The 1st Appellant only wrote to Lufwanyama City Council to revoke the permit on 12th May, 2011. She further found that the Respondent had been pursuing the land in question since 2009 when the 1st Appellant asked people to occupy the land, therefore the land was not abandoned. 18. The court below held that the 1st Appellant had no authority to invade the land in question without following the due process. She held that the Respondent is entitled to quiet enjoyment of the farm as the permit issued to the late Gulften Kaira was still subsisting. THE APPEAL 19. The Appellants being dissatisfied with the decision of the High Court, appealed raising the following grounds; i. The learned trial Judge in the court below erred in both fact and law when she held that the Respondent is the rightful owner of the Farm known as Kaira and Sons -J7- contrary to her findings of fact and against the weight of the evidence. ii. The learned trial Judge erred in both law and fact when she overlooked the authority of a chief to repossess land remaining undeveloped in its chiefdom and where conditions and terms of occupancy were abrogated. iii. The learned trial Judge in the court below erred in law and fact when it granted 250 hectares of land against the Respondent's own testimony that only 30 hectares of land was developed. THE ARGUMENTS ADVANCED 20. In their heads of argument, the Appellants began by highlighting the findings of fact made by the trial court. They submit that the lower court could not declare the Respondent the owner of the property in question in the absence of a Certificate of Title. Further, that the court erred when it delved into issues of how customary land is granted or repossessed. 21. It was con tended that the weight of the evidence before the lower court did not point to the fact that the Respondent was the owner of the land in question. We were referred to Sections 34 ( 1) and 54 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia as authority for the contention that ownership of land emanates from a Certificate of Title. -J8- 22. The Appellants contended that there was n o basis upon which the lower court could h ave granted the Respondent ownership of land held under customary tenure. We were referred to the case of Vincent Musukuma & Others v. Major Baxter Chibanda f1J in respect of the standard of proof r equired in civil matters. We were further referred to the definition of the word 'owner' from Black's Law Dictionary. 23. It was the Appellants' contention that the trial court did not properly analyze the evidence before it in arriving at its decision. Further, t h at the trial court erred when it failed to give reasons why it rejected the evidence before it. We were referred to the case of Justine Chansa v. Lusaka City Council f2J where the Supreme Court set aside findings of fact made by a trial court on account that the Court did not give any reasons for ignoring evidence before it. 24. In an attempt to persuade us to interfere with the findings of fact made by the trial cou rt, we were also referred to the case of Nkhata and Four Others v. Attorney General f3J. The Appellant contended that the trial court ought to have considered the fact that only 30 h ectares ou t of 250 hectares was developed by the -J9- Respondent. Further, that there was evidence of a pending matter before the tribunal considering the attempts made b y the Respondent in obtaining a Certificate of Title without the Chieftainess' consent. 25. The Respondent in the heads of argument dated 17th December 2018, submit that the court below was on firm ground when it held that the Respondent is the rightful owner of the farm. 26. The Respondent alluded to the evidence of the grant of 250 hectares of land to the late Gulften Kaira and the payment of personal levy as well as the letter dated 12th May, 2011 attempting to revoke the permit of occupation by the Chieftainess. 27. In r espect to ground two, the Respondent contends that the court below did not error by overlooking the authority of a Chief to repossess land in his or her Chiefdom. The gist of the argument b eing that in the administration of customary land, customs and traditions should not be contrary to the rules of natural justice. That there was no justification to repossess the land. Personal use of the land by the Chieftainess is and cannot be a basis for repossession. -JlO- 28. As regards ground three, the Respondent submits that the mere fact that only 30 hectares of land was cleared, is not a basis to grab the other remaining land. Land is used for various purposes aside from crop farming, therefore the court was on firm ground in upholding its claim for 250 hectares. Therefore, the appeal should be dismissed with costs. 29. The Respondent in the further heads of argument dated 26th August, 2019, submits that in the permit of occupation of land appearing at page 6 of the supplementary bundle of arguments, the Chieftainess granted consent for the Respondent to acquire 250 hectares of land. Thereafter the Respondent started paying personal levy to N dola Rural District Council. It was con tended that personal levy is not payable under customary law. As authority the decision of the Supreme Court in the case of Sailas Ngowani & 6 Others v. Flamingo Farm Limited f4 J was cited. The said decision dealt with a piece of land which becomes subject of a certificate of title and whether it can be administered under customary tenure. 30. The Respondent argued that the land 1n issue was no longer under the chief's control after he started paying personal levies. -Jll- It was further argued that the letter of revocation of the permit by the Chieftainess appearing at pages 48 and 49 of the record of appeal shows that the land in question was no longer under the chieftainess' control. In addition, that the said letter was not acted upon as no tribunal was ever constituted to deal with the disputes regarding the land. 31. At the hearing of the appeal, the parties augmented their filed arguments. The same were largely a repetition of the written arguments. Counsel for the Appellant, Mr. Simwanza reiterated that the Appellant's main contention stems from the eventual declaration by the lower court that the Respondent is the rightful owner of the land in issue. According to Mr. Simwanza, the declaration by the trial court is not supported by its own findings or the evidence on record. 32. Mr. Simwanza referred us to a letter from the Respondent's advocates appearing at page 10 of the supplementary bundle of documents. He argued that the said letter reveals, under paragraph 2, that the claim by the Respondent was for occupancy of the land in issue and not ownership. -J12- 33. In response, Counsel for the Respondent, Mr. Mazumba, contended that the lower Court properly held that any arbitrary revocation of a permit cannot be condoned by the court. He went on to argue that it is settled that customary law ought not to be repugnant to natural justice. 34. In response , Mr. Simwanza argued that the lower Court found as a fact that the permit appearing at page 6 of the supplementary bundle of documents merely authorized the Respondent to occupy and use the land but it did not vest ownership in him. He added that the levy paid was like rent. 35. Mr. Simwanza contended that reference , by the Chieftainess, of the dispute to Lufwanyama District Council is an indication of her adherence to the rules of natural justice. Further, that the revocation of the permit was not without reason. He submitted that the 1st Appellant had reasons to revoke the permit namely; non-payment of rent for over 10 years, failure to develop the entire land in question, the fact that the Respondent's mother had been attempting to sell the land in issue and that the administrator of the estate of the late Gulften Kaira only emerged when the -J13- chieftainess had requested for revocation of the permit of occupancy. 36. In concluding his arguments, Mr. Simwanza, contended that even assuming that the Chieftainess' conduct was repugnant to natural justice, there was no justification for the Respondent's status to change from license holder to owner of the land in question as declared by the lower Court. DECISION OF THE COURT 37. We have considered the appeal, the evidence adduced in the court below and the submissions advanced as well as the authorities cited by the Learned Counsel. 38. It is not in dispute that the Respondent's father was allocated land by the Chieftainess in 1986. He was in occupation of the said land. Subsequently, the Respondent's father died in 1999. 39. Issues emanated upon the installation of a new Chieftainess who directed the 2 nd Appellant to occupy part of the Respondent's land. 40. It is trite that an appellate court will not ordinarily interfere with the findings of facts made by a trial court. We would only interfere, where there has been a misapprehension of facts, or -J14- where the findings are not supported by evidence or are perverse such that no reasonable tribunal would find as such. We also ref er to our decision in Victor Zimba v. Elias Tembo, Lusaka City Council & The Commissioner of Lands rsJ where we had occasion to comment on instances where an appellate court will reverse findings of fact made by a trial court. We stated that; "The function of the appellate court is primarily one of review, and a judge's decision should only be reversed in cases where the appellate court is satisfied that the judge has erred in principle by giving weight to something which he ought not to have taken into account, or by failing to give weight to something which he ought to have taken into account." 41. In ground 1, the Appellants contend that the lower court ought not to have declared the Respondent as the owner of the land in the absence of a Certificate of Title. Before delving into the main issues, we will first address the issue of whether the land in issue is customary land or not. 42. The Respondent in their submissions attempted to argue that the land in issue was not customary land, therefore it was not under the chieftainess' control. As authority the case of Sailas Ngowani & 6 Others v. Flamingo Farm Limited r4J was cited. In our view, the above cited case is not applicable to the circumstances or facts of this case. The case of Sailas Ngowani & 6 Others v. Flamingo -JlS- Farm Limited r41 dealt with a piece of land in dispute which was subject of a certificate of title and whether it continues to be administered under cu stomary law. In casu, the land subject of dispute is customary land. We now move on to the issue of whether the Respondent is the rightful owner of the farm in issu e or was in occupation at the time of the alleged re possession of the land. 43. We shall begin by making reference to the d efinition of the word "ownership" in respect of property / land and what it entails. We refer t o the definition of ownership contained in the Oxford Dictionary of Law; "The exclusive right to use, possess, and dispose of property, subject only to the rights of persons having a superior interest and to any restrictions on the owner's rights imposed by agreement with or by act of third parties or by operation of law." 44. It is not in dispute that customary land is subject to the rules of th e Chiefdom of th e area in which it is situated and that a Chief/ Chieftainess h as the right to allocate and repossess land for infringem ent of the rules subject to which it was allocated or granted. -J16- 45. The evidence in the court below reveals that though reference was made to the conditions subject to which the land was given, the said conditions were not produced before the court. 46. The evidence reveals that the Respondent's father, Gulften Kaira, was allocated the land in question in 1986. In 1994 Gulften Kaira was given an occupation permit. As a result, he started paying personal levy to the local authority at Lufwanyama. Though the land in question was allocated subject to certain conditions, as correctly observed by the trial court, the conditions were not before court. 4 7. As to the key issue of whether the Respondent was in occupation at the time of the alleged repossession of the land or whether the land was abandoned, we are of the firm view that the Respondent was in occupation of the land. Evidence was adduced to show that the family of the late Kaira was in occupation of the land and that the said land was being utilized. The Chieftainess in the defence on record at page 29-30 averred that a portion of the land was in use. Further in her letter to the Lufwanyama District Council, she stated that there was a person claiming to be the son of the late Gulften Kaira on the land, who was not complying -Jl 7- when called to discuss development of the land. Therefore, at the time the 1st Appellant wrote the letter dated 12th May, 2011 to the District Council to revoke the permit of occupation, the Respondent was in occupation of the land. 48. We are of the view that the trial court cannot be faulted for declaring the Respondent owner/ occupier of the land m question. It is trite that the definition of ownership above, entails that the Respondent was in possession of the land subject to any conditions, restrictions or superior interests. We therefore find no merit in ground 1 and we dismiss it. 49. In ground 2, the Appellants contend that the lower court overlooked the fact that the Chief has the power to repossess the land in question. As earlier stated, it is not in issue that a Chief/ Chieftainess in respect of their area of customary land subject to their rule has the power to allocate and to repossess land. 50. The issue 1s whether a Chief/Chieftainess has power to arbitrarily repossess land. Though the Appellants contend that the lower court disregarded the power of the Chief to repossess the land, the judgment at J 14 shows that the lower court took -J18- into account and recognized the power of the chief to repossess land and that the Appellants took over the land in question before the revocation of the permit. The court below stated that the proper procedure on revocation of the permit was not followed. 51. We are of the view that the purported repossession and subsequent revocation of the Respondent's permit of occupation was arbitrarily done. This is on account of the fact that, the Respondent was in occupation and had not abandoned the land, a fact the Chieftainess was fully aware of. 52. The Chieftainess appears to have converted the land to her personal use as she came up with many excuses for the purported revocation of the occupancy permit. The reasons ranged from allegations that it remained unoccupied and disused; that one of the Respondent's relatives was cultivating marijuana on the land, to lack of development and to the fact that the Respondent's Farm has never recorded selling crops to the Food Reserve Agency contrary to the by-laws of the Chiefdom. We refer to the letter to the Lufwanyama District Council from the Lamba Royal Establishment at page s 48- 49 of the record -J19- which highlights the above allegations as well as the Defence on record appearing at page 29. 53. We hold the view that the Chieftainess was wrong to arbitrarily instruct the District Council to cancel the permit of occupation without ascertaining on the ground whether the land was abandoned or undeveloped. 54. We cannot therefore fault the findings of fact made by the trial court which are supported by the evidence that was before it. We find no merit in ground 2. 55. In ground 3, the gist of the Appellants' argument is that the lower court erred when she granted the entire 250 hectares of land to the Respondent when there was evidence that only 30 hectares was developed. 56. We have already held that the lower court properly found that the Respondent had a permit of occupation for the entire 250 hectares. Further, that the procedures for the revocation of the permit were not followed. The conditions or alleged by-laws of the Chiefdom upon which the permit was granted, were never presented before court. • 57. In light of the fact that the Respondent was holder of an -J20- occupation permit of the 250 hectares of land in issue, the trial court cannot be faulted for holding that the Respondent was entitled to the use/ occupation of the entire piece of land 1n dispute. We therefore, find no merit in ground 3 as well. CONCLUSION 58 . Having found no merit in all the grounds of appeal, we accordingly uphold the judgment of the court below. The appeal is accordingly dismissed. Costs are awarded to the Respondent to be taxed in default of agreement. -====-----~ -----.:::===-=---- ----- =--- M. M . Kondolo , SC COURT OF APPEAL JUDGE ............ -~ -....... . ............ . C. K. Makungu COURT OF APPEAL JUDGE F. M. Chishimba COURT OF APPEAL JUDGE