Rephidim Institute Limited v The Attorney General (Application NO. SP04 OF 2024) [2024] ZMCA 238 (1 August 2024)

IN THE COURT OF APPEAL OF ZAMBIA Application NO. SP04 OF 2024 HOLDEN AT LUSAKA (Civil Jurisdiction) ,, BETWEEN: ----," o 1 A 1~s t'~t , /1 REPHIDIM INSTITUTE LIMITED APPLICANT AND THE ATTORNEY GENERAL RESPONDENT CORAM: Chashi, Sichinga and Sharpe-Phiri, JJA ON: 27th June and 1st August 2024 For the Applicant: E. S Silwamba, SC, J. A Jalasi and W. Chinyemba, Messrs Eric Silwamba, Jalasi and Linyama Legal Practitioners For the Respondent: N/A RULING CHASHI JA, d elivered th e Ruling of t h e Court . Cases referred to: 1. Wilheim Roman Buchman v The Attorney General - SCZ Judgment No. 14 of 1994 2. Mususu Kalenga Building Limited and Another v Richman's Money Lenders Enterprises and Others (1999) ZR,27 3. Bidvest Food Zambia Limited and 4 Others v CAA Import and Export Limited - SCZ Appeal No. 56 of 2017 R2 4. Anti-Corruption Commissions v Barnnet Development Corporation Limited (2008) ZR, 68 5. Jonathan Van Blerk v The Attorney General and 5 Others - SCZ/8/03/2020 6. Kekelwa Samuel Kongwa v Meamui Georgina Kongwa SCZ/85/2019 7. Finance Bank Zambia Limited v Dimitros Monokandilos and Another-SCZ/08/2019 Legislation referred to: 1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia 2. The Court of Appeal Act, No 7 of 2016 3. The Supreme Court of Zambia Act, Chapter 25 of the Laws of Zambia 4. The Preservation of Public Security Act, Chapter 112 of the Laws of Zambia 5. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia Rules referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 Other Works referred to: 1. Halsbury Laws of England, 4 th Edition, Re-issue, Volume R3 1.0 INTRODUCTION 1.1 On 8 th June 2023, we delivered Judgment in appeal No. 256 of 2020, in favour of the Respondent. In the said Judgment, we opined that the Appellant, from the evidence, failed to establish that the Respondent had no legal right to remain on the property in issue. In addition, we ordered cancellation of certificate of Title No. 33865 by the Commissioner of Lands. 2.0 THE APPLICATION 2.1 Dissatisfied with our Judgment, the Applicant who was the Appellant in the appeal has moved this Court for leave to appeal to the Supreme Court, pursuant to the provisions of Article 131 (2) of The Constitution of Zambia 1 , Section 13 of The Court of Appeal Act2 (CAA) , Order 11 of The Court of Appeal Rules 1 (CAR) as read with Section 24 (b) of The Supreme Court of Zambia Act3 • 2.2 The Applicant intends to appeal on two grounds as follows: (i) The Court of Appeal erred in law in paragraph 7.22 at page J23 of the Judgment when it R4 anchored its decision that the Appellant was not a bona fide purchaser as there was a military occupation on the semi or threatened State of emergency videlicet whether the State duly acquired an interest in subdivision A 20 of Farm 690, Lusaka under the provisions of the law and; (ii) The proper procedure for the State to acquire rights in land and evidence ownership during a semi or threatened state of emergency. 2.3 According to the Applicant, the intended appeal raises points of law of public importance, has reasonable prospects of success and there are compelling reasons why the appeal should be heard by the Supreme court. 2.4 The Applicant in arguing the motion, submitted that the law regarding what issues maybe raised at appeal is clear, that an appeal is a rehearing on record, that the ref ore facts not raised in the court below, cannot be raised on appeal, but a matter of law can be raised. Our attention was drawn to the cases of Wilheim Roman Buchman v the Attorney General1 and Mususu RS Kalenga Building Limited and Another v Richman's Money Lenders Enterprises2 2.5 It was the Applicant's contention that the intended appeal raises a point of law of public importance and has prospects of success. Further, that there are compelling reasons for granting of leave to appeal. According to the Applicant, the requirements provided for under Section 13 CAA, have been met, as per the draft memorandum of appeal. 2.6 On the issue of public importance, reference was made to the learned authors of Halsbury's Laws of England 1 at paragraph 907, where it was stated as follows: "The appeals lie only with leave of the Court of Appeal or the House of Lords, and leave may not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved and it appears to the Court of Appeal or House of Lords, as the case may be, that the point is one which ought to be considered by the House." R6 2. 7 The Applicant cited the case of Bidvest Food Zambia Limited and 4 Others v CAA Import and Export Limited3 and submitted that the intended grounds of appeal ultimately bring to the fore the rules on certificate of title, how title to the land is obtained and importantly the power of the state to acquire real property under The Preservation of Public Security Act, 4 during a semi or threatened state of emergency. That the core issue underlying is that the court erred when it anchored its decision that the Applicant was not a bona fide purchaser as there was a military occupation on the semi or threatened state of emergency without examining the facts and requisite legislation. 2 .8 Our attention was drawn to Sections 33 and 34 of The Lands and Deeds registry Act5 and submitted that a certificate of title is conclusive evidence of ownership of land and confers legal interest that is valid except where fraud is proved. The case of Anti-Corruption Commissions v Barnnet Development Corporation Limited4 was cited in aid of that argument. R7 2.9 The Applicant further drew our attention to Article 30 and 31 of The Constitution of Zambia (Amendment) Act, No. 2 of 2016, which provides for powers of the President in consultation with Cabinet, to proclaim a full state of emergency. We were also ref erred to the case of Jonathan Van Blerk v The Attorney General and 5 Others, 5 where the Supreme Court stated that, a compulsory acquisition of land must be done in public interest and not for the benefit of private individuals. 2 . 10 It was further submitted that although the State has power to acquire land, it must be done in good faith for public benefit and subject to payment of just compensation. It was contended that the Applicant is entitled to compensation as there was no statutory process fallowed by the State to acquire the land for the benefit of Zambia National Service. 2.11 On the issue of prospects of success, we were urged to consider the intended grounds of appeal. It was submitted that an appeal, based on those grounds, bear reasonable prospects of success because they ultimately have a bearing on State obligations that RS follows deprivation of property as entrenched 1n the Republican Constitution. 2.12 The Applicant further submitted that there are compelling reasons for this Court to grant leave to appeal to the Supreme Court. The compelling reasons being that, the matters raised in this Court, and which are intended to be subject of the appeal, are issues that require guidance from the Supreme Court, on what procedure must obtain for the state to duly acquire land in a semi or threatened state of emergency and the impact on the purchasers of land. 3.0 ARGUMENTS IN OPPOSITION 3.1 In opposing the application, the Respondent filed an affidavit 1n opposition and skeleton arguments. According to the Respondent, the motion has not established that the intended appeal has an important question of law. That the application is frivolous and vexatious and has no merits and prospects of success. 3.2 Citing the Bidvest case, it was submitted that the court has jurisdiction not to grant leave to appeal, if it is of the view that the appeal does not raise issues of public R9 in terest. We were also referred to th e case of Kekelwa Samuel Kongwa v Meamui Georgina Kongwa6 , where the Supreme Court h eld as follows: "For a legal question to be treated as a point of law of public importance, it must have a public or general character rather than one that merely affects the private rights or interest of the parties to a particular dispute. The legal point in issue should relate to a widespread concern in the body politic, the determination of which should naturally have affected beyond the private interest of the parties to the appeal." 3.3 It was further submitted that in the Bidvest case the Supreme Court gave guidance on wh at a point of law of pu blic im portance is and that before granting leave to a ppeal on such a point, the Court m u st be satisfied that th e adju dication is for the public good or so novel it en gages wider pu blic in terest. 3.4 Th e Respondent contended that the in tended appeal does n ot satisfy the requirement of Section 13 (3) CAA RIO as it has no reasonable prospects of success. We were ref erred to the case of Finance Bank Zambia Limited v Dimitros Monokandilos and Another7 where it was held that: "An appeal hearing is justified if there is a real prospect that it could make a difference to the outcome, otherwise resources and time would be wasted in vain." 3.5 According to the Respondent, the motion has not shown that there is compelling reasons for the court to grant leave. Further that, it has failed to satisfy the requirement of Section 13 (3) (a) (c) or (d) CAA. 4.0 OUR ANALYSIS AND DECISION 4 . 1 We have considered the motion and the arguments by the parties. A review of our Judgment and the record of appeal shows that the Applicant before the High Court was seeking compensation for the land and mesne profits as the registered legal owner of the farm in issue. 4.2 In our consideration of the four grounds of appeal, which were before us together with the arguments, we narrowed the issue for determination as follows: Rll "whether the portion of land that is currently occupied by ZNS belongs to the Appellant. If the answer is in the affirmative, whether the land was purchased subject to the interest of ZNS." 4.3 We did in our Judgment note that, the court below found that the Applicant failed to prove its case on a balance of probability that the portion of land which ZNS was occupying belonged to it. That this finding was based on the fact that the Applicant failed to adduce evidence on how the land was acquired and the extent of land, as no contract of sale was produced. The Applicant also did not produce a land register to show how the land devolved, and also to show that the entire Farm 690 belonged to it. 4. 4 Because of the poor manner 1n which the case was presented by the parties in the court below, we made an Order for production of fresh evidence. Based on the totality of the evidence before us, we opined that the Applicant was the registered owner of the portion of land occupied by ZNS. We then went on to consider whether R12 the Applicant purchased the land subject to the interest of ZNS. 4.5 From the Applicant's evidence, we were of the view that, it was not in dispute that when the Applicant was acquiring the land, it had actual notice of the presence of ZNS on the land, but did not inquire from ZNS what its interest was. It was on that basis we found that the Applicant was not a bona fide purchaser for value. In our view, the Applicant had failed to establish that the Respondent had no legal right to remain on the property. 4.6 We also took the view that there was impropriety on the part of the Applicant in the manner in which the certificate of title was obtained in respect to the land occupied by ZNS. This was in light of the fact that the land was still a contentious issue at the time the Applicant applied for issuance of the title. It is in that respect that we ordered cancellation of the certificate of title. 4. 7 It is succinct in the appeal before us, that issues of procedure as to compulsory acquisition of land, did not R13 arise. So were the issues relating to the preservation of public security. It is clear from the intended grounds of appeal that these are the issues, the Applicant wants the Supreme Court to pronounce itself on. Indeed, as rightly observed by the Applicant, a matter not raised before this Court cannot be subject of an appeal to the Supreme Court. Although these may be points of law, they do not go to challenging the jurisdiction of this Court. 4.8 In the view, we have taken, we see no point of law of public importance which needs the Supreme Court to pronounce itself on. Consequently, there 1s no reasonable prospect of the intended appeal succeeding. 4.9 It is evident that this is purely a matter between the Applicant and the State, which does not transcend into the public arena, arouse or engage broader public interest or concern. The intended appeal does not satisfy the test set out in the Bidvest case nor meet the threshold envisaged under Section 13 (3) CAA. 4.10 In the view that we have taken, this is not a proper case to grant leave to appeal to the Supreme Court. Leave is R14 accordingly refused. Costs to the Respondent. Same to and to be taxed in def J. CHASHI COURT OF APPEAL JUDGE / D. L. Y SICHIN COURT OF APPE 1L JUDGE . , SC ~ HARPE-PHfu' COURT OF APPEAL JUDGE