Peter Shakafuswa and Anor v Kalongo Chitengi (Suing as Administratrix of the Estate of the Late Ruth Sombo Chitengi) (APPEAL No. 42/2023) [2024] ZMCA 305 (19 November 2024)

[N THE COURT OF APPEAL FOR ZAMBIA APPEAL No. 42/20: EIOLDEN AT NDOLA rcivil Jurisdiction) BETWEEN: ?ETER SHAKAFUSWA fCAFUE DISTRICT COUNCIL 1 ST APPELLANT 2ND APPELLANT [{ALONGO CHITENGI (SUING AS ADMINSTRATRIX RESPONDE:f )F THE ESTATE OF THE LATE RUTH SOMBO CHITENGI) Coram: Chashi, Makungu, and Sichinga, JJA on 12 and 19 November, 2024 4'or the 1st Appellant: Mrs. M. Kamwi of Messrs Kamwi Andeleki Le~ 4'or the 2 nd Appellant: No appearance Practitioners 4'or the Respondent: Mr. E. B. Mwansa, SC of Messrs EBM Chamb1 Mr. L. C. Ng 'onga of Messrs Kamanga Ng 'onga Le! Practitioners JUDGMENT 3ichinga JA, delivered the judgment of the Court. Cases ref erred to: 1. Nkhata and 4 Others v The Attorney-General of Zambia ( 1966) Z. R. 124 2 . Julia Zulu and Others v Evans Hangoma (Unreported) 3. Attorney-General v Kakoma (1975) Z. R. 215 J1 4. Anti-Corruption Commission v Barnet Development Corporation (2008) vol. Z. R. 69 Legislation referred to: 1. The Supreme Court Rules (1965) 1999 Edition (White Book) 2. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia 1.0 Introduction 1. 1 This is an appeal against the Judgment of the High Court Lusaka, delivered by Kombe J, on 30 December 2020. 2.0 Background 2.1 In this part of the judgment, we shall refer to the parties · their designations in the court below. The brief backgrou1 of this matter is that Ruth Sombo Chitengi, the plaintiff the Court below (now respondent) was allocated Lot l\ 14860/M, Lusaka, by the Commissioner of Lands throu: Kafue District Council, the 2 nd defendant (now : appellant) . She was issued with a Certificate of Title dat 28 May 2010, in her name. 2.2 According to the plaintiff, things fell apart when in 2009 s learned that Peter Shakafuswa, the 1st defendant (n< appellant) was carrying out activities on her land witho her licence, consent or authority, neither express n J2 implied. That he did so without the authority of the defendant or other relevant authority, and without Certificate of Title in his name and possession. All tl plaintiff's efforts to reason, repossess and prevent the defendant from continuing his alleged trespass ai developments on the disputed property proved futile. 2.3 Sometime in 2010, the plaintiff took out originati1 summons for possession under Order 113/1 of the Rul of the Supreme Court! alleging that she was entitled possession and that the 1st defendant was in occupatic without licence or consent. By consent order dated '. September 2011, the process was amended to commence· way of writ of summons and statement of claim. 2.4 The plaintiff sought the following reliefs: (i) A declaration that she is the lawful owner of the property kno, as Lot No. 14860/M situate in the Lusaka Province of Zambia (ii) An order for possession of Lot No. 14860/M situate in t Lusaka Province of Zambia; (iii) An order to evict the 1st defendant and his servants, agents a whosoever from Lot No. 14860/M situate in the Lusa Province of Zambia; (iv) Damages for trespass by the 1st defendant to the plaintiff's 1 14860/M situate in the Lusaka Province of Zambia; (v) An interim injunction restraining the defendant and l servants, agents and whosoever from continuing trespassing the said property known as Lot No. 14860/M situate in t Lusaka Province of Zambia; J3 (vi) Interest; and (vii) Costs. 2.5 The 1st defendant, in his amended defence filed on 13 Ap 2015, denied that the plaintiff was the rightful owner oft disputed property. He averred that mere possession oft Certificate of Title by the plaintiff did not guarant ownership due to irregularities in the issuance of the sc title deed. He averred that he acquired the land from t estate of the late Dickson Sumali Zulu, who . had equa acquired the land from the Commissioner of Lands. Th the deceased had been in occupation of the land und customary tenure before it was converted to State land the 2 nd defendant. 2.6 The 2 nd defendant was joined to the proceedings by the defendant on 28 March 2012. In its defence, it averred th the plaintiff had no reasonable cause against it. 3.0 Decision of the court below 3.1 Once the lower Court had conducted a trial, the learn Judge framed three main question for consideration: -First, whether being a sitting tenant or an occupier was , eligibility criteria for one to be recommended by Kafue Dis tr Council to the Commissioner of Lands to be offered lai which formed part of Subdivision of Fai 459a/ Shimabala; J4 -Second, whether the Commissioner of Lands was bound the recommendation made by the council to offer the land question to Mr. Zulu; and -Third, whether there is evidence which shows th procedure was not fallowed when the plaintiff was issu1 with a Certificate of Title. 3.2 On the first question, the learned trial Judge found th being a sitting tenant or an occupier was not an eligibili criteria for one to be recommended by the Kafue Distri Council to the Commissioner of Lands to be offered la.1 which formed part of Subdivision of Far 459a/ Shimabala. 3.3 On the second question, on whether the Commissioner Lands was bound by the recommendation made by t council, the learned trial Judge found that the former w not bound by the recommendation of the latter. 3.4 Furthermore, on the final question, the learned Judge fou1 that there was no evidence showing that procedure w flouted by the plaintiff leading to the issuance of Certificc of Title in her favour. 3.5 Judge Kombe then proceeded to consider the plaintif claims. In the final analysis, she declared the plaintiff to the lawful owner of the property known as Lot No. 14860/ Lusaka. She granted the plaintiff an order of possession JS Lot 14860/M Lusaka together with an order to evict the defendant, his servants or agents from the said properi She also ordered the 1st defendant to pay damages to t plaintiff for trespass, same to be assessed by the learn Deputy Registrar. The learned Judge further ordered co~ in favour of the plaintiff. 4.0 The appeal +. 1 Aggrieved by the decision of the lower Court, the defendant, now appellant, appealed to this Cou advancing the following grounds : 1. That the Judge in the Court below erred in law and fact wh she did not consider the evidence on record by the witnes~ and bundles of documents indicating that the beneficiaries the land in issue were identified by the Judgment of t Lands Tribunal in the matter between Julia Zulu and 0th~ vHangoma; 2. That the Judge in the Court below erred both in law and fc when she held that the respondent's Certificate of Title w valid amidst overwhelming evidence that the same w irregularly issued by the Commissioner of Lands; and 3. The Judge in the Court below misdirected herself when s found that the 1st appellant had illegally built on the land issue, when the land had been built upon before t plaintiffs purported Certificate of Title was issued and t same was validated by the Judgment of the Lands Tribur: between Julia Zulu and Others v Evans Hangoma. J6 5.0 Appellant's arguments in support of the appeal 5.1 At the hearing of this appeal, Mrs. Kamwi, learned counsel 1 the 1st appellant relied on the 1st appellant's detailed heads argument filed on 16 February 2023. In the said argumern grounds one and three are presented together. Ground two argued separately. 5.2 In support of the first and third grounds, Mrs. Kamwi, reli, on the case of Nkhata and 4 Others v The Attorney-Gener of Zam.bia 1 on when an appellate court can reverse a tn Judge on findings of fact. Mrs. Kamwi submitted that the tri Judge ought to have taken into account the genesis of t allocation of Subdivision 13 of Farm 459a/Shimabala sitting tenants. That she should have considered how t: respondent's name was found on the list since she was not sitting tenant. 5.3 Counsel drew our attention to page 239 of the record of app<: to show the 17 people who were sitting tenants ai recommended for allocation of the land, and the evidence DW3 who testified that Mr. Zulu had been a sitting tenant. was argued that in assessing and evaluating the evidence, t learned Judge failed to take into account the list of the sitting tenants and the testimony of DW3. That if she had, s: would have come to the conclusion that the respondent h not obtained good title. J7 5.4 In addition, we were referred to page J50 (page 53 of tl record of appeal) where the learned Judge accepted tl evidence of the respondent that she applied for the lai through the 2 nd appellant and was called for interviews. Sl was subsequently notified that her application was successf1 It was submitted that whilst the evidence was not dispute the learned Judge ought to have considered that the ~ appellant's minutes stated differently. 5.5 Counsel further submitted that it 1s clear from Minu KDC/KWD/33/01/2001 that the land in issue was allocat1 to sitting tenants. That according to DW2's evidence, tl respondent was not a sitting tenant but was included on tl list of the 1 7 because her husband Judge Chitengi paid for tl survey fees since the other members on the list could n afford them. 5.6 Furthermore, Mrs. Kamwi submitted that the learned Judg« finding that the appellant, who purchased the land from sitting tenant, illegally built on the land 1n issue was misdirection. That it is from the backdrop that Mr. Dicks◄ Zulu occupied the land from 1960, and as such, there we existing developments on the land at the time the appella purchased it. 3. 7 Counsel submitted that the learned Judge erred 1n law ru fact when she did not consider the evidence on record ru found that the 1st appellant had illegally built on the land JS issue without considering that there were people living on t same piece of land from 1960. We were therefore urged allow grounds one and three. 3.8 On ground two, Mrs. Kamwi referred the Court to section ~ of the Land and Deeds Registry Act2 regarding when Certificate of Title may be cancelled. It was submitted that tl respondent's title was improperly obtained on account of tl background of the land in issue. That the 2 nd appella intended to regularize the stay of targeted persons whom referred to as sitting tenants. In support of this submissio reliance was placed on the document at page 239 of the reco of appeal. It is an extract of minutes of a meeting held by tl 2 nd appellant to persons who were living on those pieces land. 3.9 At page 582 of the record of appeal, our attention was dra\l to the evidence of DW2 to the effect that a physical inspecti, revealed that Mr. Zulu's plot was identifiable but t respondent's was not. 3.10 It was argued that that there was further documenta evidence at page 152 of the record of appeal, a letter from t 1st appellant to the Commissioner of Lands in which t former sought the indulgence of the latter to put the reco straight that Lot 14860/M was offered to Mr. Zulu and t respondent was offered 14852/M. J9 5.11 At page 235 our attention was drawn to a letter dated 28 Ap: 2019 from the 2 nd appellant to the 1st appellant advising th Lot 14860 /M was agreed to be swapped with Lot 14859 /M. was submitted that Certificate of Title for Lot 14860 w, improperly obtained by the respondent because the land issue was recommended by the 2 nd appellant to be allocated sitting tenants for purposes of regularizing their status. V were urged to allow ground two of the appeal. 5.0 The 2 nd appellant's arguments :>. l The 2 nd appellant neither filed heads of argument n appeared at the hearing. 7.0 The respondent's arguments 7. l The respondent filed her heads of argument on 19 July 202 in which counsel responded to the grounds in like manner ; presented by the 1s t appellant. 7.2 In response to grounds one and three, Mr. Mwansa, S submitted on behalf of the respondent that there was 1 misdirection on the part of the learned trial Judge when sl did not consider the evidence on record indicating that tl beneficiaries of the land in issue were identified by tl judgment of the Lands Tribunal in the matter between Jul Zulu and Others v Evans Hangoma2 because: the appellant neither exhibited nor tendered in evidence the sa alleged judgment of the Lands Tribunal before the _ lower Cou: JlO the 1s t appellant, 2 nd appellant and respondent were n parties in the alleged proceedings before the Lands Triburn the issues before the lower Court which it determined we between the 1st appellant, 2 nd appellant and the responder and the parties in the said alleged Julia Zulu case were n parties to the present case. Further, they were not called : witnesses by either of the appellants. r. 3 It was argued that the lower Court could not be faulted on th ground because all relevant matters were taken into accou as observed on pages 52 to 54, 68 and 69 of the record appeal. State Counsel contended that the respondent w: called for interviews and aptly notified of her successf application. That this fact was not disputed and the learrn Judge accepted it. In this regard the lower Court cannot 1 faulted . 7.4 Mr. Mwansa, advanced that in fact the said 17 sitting tenan were all squatters on the State land without Certificate of Ti1 and as such they were at the mercy of the Commissioner Lands, who had a choice to evict them or refuse to legali their occupancy, or allocate the said pieces of land to differe people. It was submitted that there was no impropriety on tl part of the respondent in acquiring the land. 7 .5 State Counsel argued that it was wrong for the 1s t appellant have purchased the land from the squatter who had no tit That he went on to develop the piece of land by putting up lodge, camping park, bar and residential house witho Jll submitting plans for development at the council and witho title. 7.6 Regarding the evidence of DW3, counsel submitted that confirmed that the 1st appellant developed the property issue after he bought it by putting up the three to four chale1 bar, a poultry and residential house without applying f permission to build them from the council and without title. 7.7 Mr. Mwansa submitted that the lower Court was on fir ground to hold that the 1st appellant illegally built the sa structures on the land in issue. 7 .8 On ground two, our attention was drawn to pages 239 at 403 of the record of appeal, being a document of extra minutes of a meeting held by the 2 nd appellant indicating th the respondent was a sitting tenant. State Counsel support, the lower Court's finding that being a sitting tenant (squatt< or occupier was not an eligibility criteria for one to recommended by the 2 nd appellant to the Commissioner Lands to be offered land which formed part of State land. 7. 9 At pages 585 of the record of appeal, we were referred to t evidence of DW2 and the list he alluded to at pages 239 aJ 403 of the record of appeal. It was contended that the plot 1 Judge and Mrs. Chitengi is included. 7.10 It was submitted that the lower Court correctly held that t Commissioner of Lands who offered a piece of Land to t respondent was not joined to the proceedings by the appellant and as such the inability to join the Attorne J12 General cannot be on the respondent who attended intervie\ and her application for a piece of land was successful. Coun~ contended that the Certificate of Title regarding Lot 14860 w: not improperly obtained by the respondent. 7.11 Mr. Mwansa also relied on the respondent's final submissi01 contained in the supplementary record of appeal filed on : May 2023, which we shall consider. 7.12 Ultimately, Mr. Mwansa urged the Court not to cond01 illegality by allowing the appeal. We were urged to dismiss t] appeal in its entirety with costs. ~. O The 1st appellant's reply 3.1 In her brief reply to the respondent's submissions, Mrs. Kam implored the Court to distinguish the facts that the occupan of the land were sitting tenants of customary land and had legitimate expectation that it would be offered to them. Sl prayed that the appeal be allowed with costs. ~. O Our considerations and decision j. 1 We have carefully considered the assailed judgment togeth with the entire record of appeal and the arguments by couns1 j,2 In the first and third grounds of appeal, the 1st appellan main contention is that the learned trial Judge misdirect1 herself when she did not consider the evidence in the case J13 Julia Zulu and Others v Evans Hangoma supra, on t j beneficiaries to the land and on the developments that were c the land prior to the respondent's title. It was alleged in tl grounds that the learned Judge's misdirection was against tl backdrop of overwhelming evidence on the record showing tl beneficiaries to the disputed land and further, tl developments that were on the said land before the responde was availed title. ~.3 Mrs. Kamwi cited the case of Nkhata and Four Others v Tl Attorney-General of Zambia supra, where the Court Appeal then, set out the conditions pursuant to which a tri Judge's finding could be reversed as follows: " ... That a trial Judge can only be reversed on questions fact if (1) the Judge erred in accepting evidence, or (2) t Judge erred in assessing and evaluating the evidence taking into account some matter which he should ha ignored or failing to take into account something which should have considered, or (3) the Judge did not take proJ advantage of having seen and heard the witnesses, external evidence demonstrates that the Judge erred assessing manner and demeanour of witnesses." ~.4 To begin with, the first and third grounds of appeal give t impression that the facts of the case of Julia Zulu a1 Others v Evans Hangoma supra were tendered into eviden by a witness and ignored by the learned trial Judge in h consideration of the evidence. We have carefully comb through the testimonies of all the witnesses. By sequence, tl J14 respondent's evidence 1s from pages 83 to 90 of tl supplementary record of appeal. The appellant's ov testimony is from pages 91 to 101 of the supplementary reco of appeal. In addition, DW2 and DW3's testimonies are pages 580 to 603 of the record of appeal. The respondent w. never cross-examined by the appellants' counsel on any fac of the matter said to be before the Lands Tribunal. Equal] the 1st appellant neither exhibited nor tendered into eviden the alleged facts as were determined by the Lands Tribunal the said Julia Zulu case. ).5 Further, we have considered the 1st appellant's submissions the Court below at pages 78 to 81 of the supplementary reco of appeal and are satisfied that the issues relating to the Ju, Zulu case were not presented to the learned Judge for h consideration. These grounds are a misrepresentation of wh was before the learned Judge's for her consideration. J.6 Our understanding of the 1st appellant's complaint on the grounds is that the learned trial Judge failed to take in account matters that were determined in the Julia Zulu ca relating to the beneficiaries of the land and the developmen thereon prior to the respondent's title. On the facts present, before the lower Court, the learned trial Judge initially ma, several findings which were not in dispute inter alia that 2001 the 2 nd appellant subdivided Subdivision 3 of Fat 459a/ Shimabala into 1 7 plots and recommended applicants who included the respondent and the late Dicksi JlS Sumali Zulu from whom the 1st appellant bought the disput1 property. ). 7 Given that the respondent had title to the disputed land, t] learned Judge approached the issues by first determining t] status of the respondent's title. She alluded to section 33 the Land and Deeds Registry Act1 on a Certificate of Ti1 being conclusive evidence of ownership . She then considen section 34 of the Lands and Deeds Registry Act1 regardi1 the circumstances when a registered proprietor' Certificate Title may be cancelled. In her detailed judgment, Kombe considered the evidence on record and found that there w, no evidence which showed that procedure was not followc when the respondent was issued with the Certificate of Tit] Page 64 of the record of appeal refers . ;).8 On the issue of the developments on the land, the learrn Judge accepted the evidence of DW3, the 2 nd appellan· Secretary who stated in cross-examination that the appellant had made developments on the land of about 3 or chalets, a bar and poultry house. Further, that he neither h, title nor permission to construct. Pages 600 to 601 of tl record of appeal refer. ;) . 9 Having combed through the evidence on record we come to tl conclusion that the challenges to grounds one and three rela to findings of fact. As guided by the Supreme Court in the ca of Attorney-General v Kakoma3 : J16 " ... a court is entitled to make findings of fact where t parties advance directly conflicting stories and the cot must make those findings on the evidence before it havi seen and heard witnesses giving that evidence." ). 10 In the present case, the learned trial Judge was entitled hold that the respondent proved her case on a balance probabilities having carefully evaluated the oral documentary record and considered the law. We are of tl firm view that there was no misdirection on the part of tl learned trial Judge. Grounds one and three are without me: and accordingly dismissed. ) .11 Turning to the second ground of appeal, the 1st appella submitted that Certificate of Title in respect of Lot 14860 w. improperly obtained by the respondent because the said 181 was recommended by the 1st appellant to be allocated sitting tenants for the purposes of regularizing their statu Having accepted the learned trial Judge's finding that the was no impropriety on the part of the respondent in h acquisition of title of the disputed land, we find that the appellant's arguments in respect of the second ground appeal are untenable. Ground two is accordingly dismissed. 10.0 Conclusion 10.1 In view of the foregoing, we find no merit in all the grounds appeal and uphold the lower Court's judgment. The appeal accordingly dismissed for want of merit. J17 L0.2 We award costs to the respondent, same to be taxed in defaL of agreement. J. Chashi COURT OF APPEAL JUDGE C. K. Makungu :OURT OF APPEAL JUDGE co inga, SC EAL JUDGE J18