Susan Bright Cormack v Alex Mulundu (APPEAL NO. 103/2020) [2024] ZMCA 89 (28 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NO. 103/2020 BETWEEN: 2 8 FEB 2 24 SUSAN BRIGHT CORMACK APPELLANT AND ALEX MULUNDU RESPONDENT Coram: Chashi, Makungu, and Sichinga, JJA. On 21 st February, 2024 and 28th February, 2024 For the Appellant: Mr. G. Miti of Messrs Wilson and Comhill Legal Practitioners For the Respondent: Mr. G. Kalandanya of Messrs Kalandanya Legal Practitioners JUDGMENT Sichinga JA delivered the Judgment of the Court. Cases referred to: 1. Hajra Import & Export Limited v Zambia Revenue Authority SCZ Appeal No. 48 of 1998 2. Wilson Masauso Zulu v Avondale Housing Project (1982) ZR 172 3. Attorney General v. Marcus Kampumba Achiume (1983) ZR 1 Legislation referred to: 1. The Urban and Regional Planning Act No. 3 of 2015 2. Statutory Instrument No. 164 of 1996 3. Statutory Instrument No. 7 of 1964 4. The Land Survey Act, Chapter 188 of the Laws of Zambia 5. The High Court Rules Chapter 27 of the Laws of Zambia 6. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia 7. The State Proceedings Act, Chapter 71 of the Laws of Zambia Other works referred to: 1. Gazette Notice No. 1345 of 1975 2 . Administrative Circular No. 1 of 1985 1.0 Introduction 1. 1 The appellant, Susan Bright Cormack (Karim), was offered Plot No. 9958, Solwezi in 2009 and she obtained Certificate of Title on 13th February, 2013. She alleged that the respondent, Alex Mulundu, had taken possession of her plot without her consent. 1.2 On 30th June, 2020 she took out an action by way of writ and statement of claim against the respondent seeking the following reliefs: 1. An order for possession of Plot No. 9958, Solwezi; 2. Damages for unlawful use of Plot No. 9958, Solwezi; 3. Damages for trespass; 4. Any other relief which the court may deem fit; and 5. Costs. -J2- 1.3 In his defence and counterclaim filed on 4 th August, 2020, the respondent stated that he is the legal owner of Plot No. 9957, Solwezi and not Plot 9958. He averred that he was offered Plot 9957 in 2006 by Solwezi Municipal Council and subsequently issued an offer letter by the Ministry of Lands in 2010. That he was later availed a building permit and constructed a dwelling house in 2011. 1.4 The respondent alleged that the appellant engaged private surveyors, who mistakenly, and in total disregard of the council's site plan, issued a survey diagram which omitted his plot. That the said survey diagram erroneously included his plot as part of Plot No. 9958. He also stated that the council had suggested that a fresh survey be conducted for the issuance of new survey diagrams to reflect the correct boundaries of the two plots. 1.5 The respondent counterclaimed for the following reliefs: 1. 2. 3. An order that the defendant is the legal owner of Plot 9957, Solwezi; An order that Plot 9957, Solwezi is distinct from Plot 9958, Solwezi; An order for cancellation of the plaintiff's Certificate of Title No. 201431; 4. An order directing the Solwezi Municipal Council to conduct a survey and issue a survey diagram that shall hold the true and correct boundaries of Plots 9957 and 9958; Any other relief the court may deem fit; and Costs. 5. 6. -J3- 2.0 The decision of the lower court 2.1 The learned trial Judge, Pengele J, held after trial of the matter, that the Certificate of Title issued to the plaintiff was erroneously based on a 2008 site plan, instead of a 2006 site plan. He held that although the 2008 site plan erroneously omitted Plot No. 9957, the omission was immaterial because the 2008 site plan was not the correct site plan for the planning and numbering of Plot No. 9957 and Plot No. 9958. He held that the correct site plan was the one for 2006. Pengele J found no merit in the plaintiffs action. 2 .3 On the counterclaim, the learned trial Judge found that the defendant was offered Plot No. 9957 on 22 n d June, 2010 . He held that the defendant had proved his counter-claims on a balance of probabilities. 2.4 The trial Judge declared that the defendant was the legal owner of Plot No. 9957 Solwezi, and that the said land was separate from Plot No. 9958. He ordered cancellation of Certificate of Title No. 201431 relating to Plot No. 9958 for being erroneously included in Plot No . 9957. He ordered the plaintiff to bear the costs of the matter. -J4- 3.0 The appeal 3 .1 Dissatisfied with the judgment, Susan Bright Cormack appealed on four grounds couched as follows: 1. The court below erred in law and fact when it held that the 2008 site plan did not affect and/or re-plan the properties planned under the 2006 site plan; 2. The trial Judge misdirected himself when he held that the respondent was the owner of Plot 9957 notwithstanding that he failed to prove his case as pleaded at trial; 3. The learned trial Judge erred in law and fact when he ordered cancellation of the appellant's Certificate of Title on the grounds of erroneous inclusion and wrong description of parcels or boundaries; and 4. In the alternative, the learned trial Judge misdirected himself when he neglected to order the joinder of Solwezi Municipal Council and later on refused to order the said Solwezi Municipal Council to ascertain the true boundaries of Plots 9957 and 9958. 4.0 Appellant's heads of argument 4 . 1 At the hearing of the appeal, Mr. Miti, learned counsel for the appellant relied entirely on the appellant's record of appeal -JS- and heads of argument filed on 13th May, 2023. The latter begun with a background to this matter, which we have adequately covered in the introductory part of this judgment. 4.2 Under ground one, we were referred to legislation and authorities on powers of planning authorities and alienation of land. This includes the Urban and Regional Planning Act1 , Statutory Instrument No. 164 of 1996, Statutory Instrument No. 192 of 1996, Gazette Notice No. 13451 of 1975 and Administrative Circular No. 1 of 19852 . 4.3 Then the appellant pointed out the differences between the two site plans in contention at pages 57 and 96 of the record of appeal. The contrasts include the series of numbering, shapes and locations of stands. It was argued that from these observations of the layout plans, the area where the two plots are situated was re-planned by the council as confirmed by DWl and DW2 in their testimonies. 4.4 It was argued that the trial Judge misdirected himself when he held at page 22 of the record of appeal that the 2008 site plan was not a cancellation and re-numbering of any previous site -J6- plan but was a numbering of completely new plots. That the court failed to appreciate the evidence of DWl and DW2 who confirmed that the area was re-planned. It was contended that if the learned Judge had considered their evidence, he would have reached the conclusion that the area was re-planned. We were urged to allow ground one and find that the area was re planned. 4.5 With respect to ground two, the appellant argued that the respondent failed to prove that he was offered Plot No. 9957 in 2006. That the respondent ought to have proved the existence of his plot for the court to come to the conclusion that the appellant had included the respondent's portion of land in her Certificate of Title. Reliance was placed on the cases of Hajra Im.port & Export Limited v Zambia Revenue Authority1 and Wilson Masauso Zulu v Avondale Housing Project2 on the principle of the burden of proof. 4.6 It was submitted that the respondent did not prove his case as to how he acquired Plot 99 5 7. We were urged to allow the second ground of appeal by finding that the respondent failed -J7- to prove his case as to when he was offered Plot No. 9957 by Solwezi Municipal Council. 4 .7 On the third ground of appeal, it was submitted that the learned trial Judge based his decision to cancel the appellant's Certificate of Title on the basis that it was issued pursuant to the 2008 layout plan and not the 2006 layout plan. It was argued that since the 2008 plan was prepared by the council and approved by the Commissioner of Lands, there was neither an erroneous inclusion nor wrongful description of the parcels in this matter. That this was so because the respondent's plot was re-planned and it only re-surfaced in 2010 when he was given the location plan appearing on page 97 of the record of appeal. 4.8 It was submitted that the learned Judge took a draconian root of cancelling the appellant's Certificate of Title without resolving the dispute. According to the appellant, on the one side, the issue in dispute was that the diagram in the Certificate of Title at pages 59 to 62 of the record of appeal is a correct representation of her Plot No. 9958. On the contrary, -JS- the respondent argued that the survey diagram on page 62 of the record of appeal is inclusive of his Plot No. 9957. 4.9 It was argued that the lower court should have invoked the provisions of section 17 (1) and 18 of the Land Survey Act4 to order correction of the survey diagram other than ordering the cancellation of the Certificate of Title . That following a re survey of the two affected properties, an amended survey diagram would have been issued to the appellant. 4. 10 We were urged to allow the third ground of appeal and find that it was an error on the part of the lower court to order the cancellation of the appellant's Certificate of Title. 4.11 Ground four was presented as an alternative ground. It was submitted that the court below ought to have joined Solwezi Municipal Council to the action pursuant to Order 14 Rule 5 of the High Court Rules5 which grants it power to add persons to the suit. Further, reliance was placed on the cases of Sailas Ngowani and Others v Flamingo Farm Limited3 and Zulu v Avondale Housing Project supra regarding the court's power to join a party to proceedings and the court's -J9- duty to adjudicate upon every aspect of suit between parties so that every matter in controversy is determined in finality respectively. 4.12 The appellant argued that both layout plans in dispute were prepared by Solwezi Municipal Council, and that the council was in the best position to find a solution to the problem which it had created. That it was therefore a misdirection on the part of the lower court when it failed to order the joinder of the council. 4. 13 We were urged to allow ground four and order the council to help ascertain the boundaries of the two properties. 4 .14 In conclusion we were implored to allow the appeal and set aside the judgmen t of the court below. 5.0 Respondent's arguments 5.1 At the hearing of the appeal, Mr. Kalandanya, learned counsel for the respondent, applied to file the respondent's heads of argument, out of time. We declined to grant the application as no sufficient reason availed to the Court for the failure to file -JlO- the said heads of argument in conformity with the rules of the Court. 6.0 Decision of the court 6.1 We have carefully considered the evidence on record, the impugned judgment and the submission by counsel for the appellant. 6.2 The issue for determination, as can be deciphered from the three grounds of appeal, is whether or not the lower court erred in cancelling Certificate of Title for Plot 9958. 6.3 According to DWl, Hyginas Mulenga Ngulukuta, a Regional Surveyor for Northwestern Province, in the Survey Department of the Ministry of Lands, there were two site plans. The first covers Plots 9950 to 9984, which is at page 96 of the record of appeal. It bears a Solwezi Municipal Council stamp dated 28 th March, 2006. Both Plots 9957 and 9958 appear on this plan. The second site plan DWl referred to, covers stands numbered 10864 to 10872. It is at page 58 of the record of appeal. It bears two date stamps for Solwezi Municipal Council for the year 2008. Plot No. 9958 appears on it but Plot No. 9957 does -Jll- not. DW 1 told the trial court that he could confirm that there was some re-planning. Page 155 of the record of appeal refers. 6.4 DW2 was Mushimbeyi Sondoi, the Town Planner of Solwezi Municipal Council. He told the trial court that the council created plots in 2006. DW2 could not confirm in his testimony if there was a re-planning of the disputed area. He accepted that Plot 9958 was omitted in the 2008 site plan. He said the exclusion could have been a manual error. Page 203 of the record of appeal refers. 6.5 Having considered the entire evidence presented by DWl and DW2, the learned Judge found as follows at paragraph 66 of page J20 (page 22 of the record of appeal): "66. In view of the foregoing, I am inclined to agree with DWl and DW2 that the 2008 site plan did not affect the properties planned under the 2006 site plan. The 2008 site plan specifically dealt with the properties indicated on it, that is, Stands 10864 - 10872. I further agree with DWl and DW2, that, if the Council's intention, when it issued the 2008 site plan was to cancel the 2006 site plan and to consequently re-number the properties contained in the 2006 site plan, the Council could have expressly stated so in the 2008 site plan. It is clear from a cursory look at the -J12- 2008 site plan, that the said site plan was not a cancellation and re-numbering of any previous plan but was for numbering of completely new plots." 6.6 The learned Judge then went on to consider section 33 of the Lands and Deeds Registry Act6 which provides that a Certificate of Title is conclusive evidence of ownership of land by a holder of a Certificate of Title. He considered the exceptions to this general rule and held that the Certificate of Title issued to the appellant was erroneously based on the 2008 site plan, instead of the 2006 site plan. He further held that the appellant's Certificate of Title erroneously included Plot No. 9957 into the land that was supposed to be covered by Plot 9958. 6. 7 Our careful reading of the evidence on record, particularly the testimonies of DWl and DW2 does not suggest that Plot 9957 was included in the appellant's title to Plot 9958. DWl suggested that there was a re-planning of the area, but he did not state definitively what happened to Plot 9957 in the 2008 site plan. DW2 suggested Plot 9957 could have been omitted by human error. -J13- 6 .8 The evidence on record reveals that both parties received offer letters from the Ministry of Lands. The appellant received her offer on 11 th March, 2009. She subsequently obtained Certificate of Title No.201431 relating to Stand No. 9958, Solwezi on 13th February, 2013. Pages 58 to 62 of the record of appeal ref er. 6.9 The respondent similarly received a letter of offer from the Ministry of Lands on 22 June, 2010. Whilst he had further interaction with the council with respect to plot verification and ground rate statements, the record does not show that he in fact obtained a Certificate of Title in respect of Stand No 9957 Solwezi. His bundle of documents at pages 90 to 100 of the record of appeal refers. 6.10 We find that the learned Judge having accepted that the 2006 site plan was the correct one, ought then to have considered the dispute in casu as essentially a boundary dispute that required the intervention of the Surveyor-General pursuant to the Land Survey Act. Under the Act, the Surveyor-General is mandated to inter alia supervise and control the survey and -J14- charting of land for the purposes of registration. The Act provides in Section 3 as follows: "3. This Act shall only apply to any survey used for the purpose of effecting the registration of any parcel of land, or for re-determining the position of a curvilinear boundary or of any beacon defining the boundary of any registered parcel of land." 6.11 A survey, in our view, would ascertain the extent of the two plots in dispute and verify their boundaries. From the findings made by the learned Judge, we find that the cancellation of Certificate of Title No. 201431 relating to Plot No. 9958 was heavy handed and a misdirection. Under the circumstances, we accordingly set aside the entire judgment of the lower court. 6.12 We accept the appellant's submissions to the extent that the parties did not create the problems relating to their boundaries. In view of the circumstances of this case, we make the following orders: i. That the matter be sent back to the lower court to be re-tried before a different Judge; -J15- ii. That the Surveyor-General be joined to the proceedings through the Attorney-General pursuant to the State Proceedings Act7 in order to survey and verify the boundaries of the disputed land in accordance with the 2006 site plan and render a report to the lower court for its consideration; and lll. That the cost of the survey be shared equally between the appellant and respondent. 7 .0 Conclusion 7. 1 We accordingly find merit in this appeal. 7 .2 We order each party to bear own ts in this Court and the court below. / J. Chashi COURT OF APPEAL JUDGE C. K. Makungu D. L. Y. iching SC COURT OF APPEAL JUDGE COURT OF APPE JUDGE - - -- ---- -------- -J16-