Kambeu and Ors v Siwabamundi (App No. 181 of 2021) [2023] ZMCA 227 (31 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) App No. 181 of 2021 BETWEEN: AND * . . &!!- �EGI�� SYDNEY KATUKULA SIWABAMUN . Box 50067' 18T CHALi PHILOMENA ZULU P. 0----- \.\)Sp,.; RESPONDENTS ND RESPONDENTS Coram: Sichinga, Patel, and Chem.be, JJA On 25th August, 2023 and 31st August, 2023 For the Appellant : No Appearance For the Respondent : Mr. J. Katati of Messrs Dove Chambers JUDGMENT Sichinga JA delivered the Judgment of the Court. Cases referred to: 1. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z. R. 172 2. Ministry of Home Affairs v Habasonde (2007) Z. R. 3. Prisca Lubungu v Obby Kapango and Ndola City Council Appeal No. 216 of 4. James Chungu v Nyokasi Chitaya and 2 others CAZ Appeal No. 14 of2017 Legislation referred to: 1. The Housing (Statutory and Improvement Areas) Act Chapter 194 of the Laws of Zambia 2. The Improvement Area (Kalikiliki Compound) (Declaration) Order, 1999 S.l. No. 39 3. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 4. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia Other works referred to: 1. Black's dictionary of Law, Bryan A. Gamer-9th Edition 2009 1.0 Introduction 1. 1 This is an appeal against the judgment of the High Court (B. M. Majula, J, as she then was) dated 23rd March, 2021 pursuant to which the learned Judge ordered vacant possession of the land situated at Lot 3326 /M Ibex Hill, Lusaka in favour of the respondents herein. 2.0 Background 2.1 According to the respondents' statement of claim dated 12th August, 2014, the respondents are joint owners of Lot 3326/M Ibex Hill (hereafter "the subject property''), having purchased it from one Jacob Lameck Shuma in 2005 and all the necessary documents were executed accordingly, which culminated into issuance of Certificate of Title No. 46000 in their names. 2.2 That in 2007, the appellants encroached onto the subject property and refused to vacate, claiming that the land was allocated Site and to them by a chairman from Kalikiliki Service. The Lusaka City Council denied having authorized the said chairman to allocate the land. The respondents offered to sell some of the land to the occupants who had made improvements thereon, but the appellants refused the offer, thereby prompting the respondents to commence an action in the High Court claiming mainly the following reliefs: i) A declaration that they are the sole owners of Lot 3326 /M Ibex Hill; ii) A declaration that all persons occupying Lot 3326 /M Ibex Hill, Lusaka are in occupation without a license or consent; iii) An order for vacant possession of Lot 3326 /M Ibex Hill, Lusaka;and iv) Damages for trespass. 2.3 In their defence, the appellants asserted that they have a legal right to occupy the land they are in occupation of, being Stand No. 21167 in Kalikiliki Compound or Block 63 of Kalikiliki Improvement Area as they are holders of occupancy licences in Kalikiliki Compound, which is a Statutory Improvement Area within the meaning of section 4( 1) of the Housing (Statutory and Improvement Areas) Act1, having been declared as such by Statutory Instrument No. 39 of 19992. 2.4 They averred that they are not squatters but owners of the land they occupy and that in 2005 when the respondents allegedly purchased Lot 3326 /M Ibex Hill, Lusaka, Kalikiliki Compound was well developed with several buildings and provided with social amenities such as water and electricity. 3.0 Decision of High Court 3.1 The trial Judge made the following orders: i) Records at Lusaka City Council indicated that the council did not approve the creation of plots nor any subdivision on Lot 3326/M Ibex Hill, Lusaka and as such, any person occupying Lot 3326/M Ibex Hill is a squatter. ii) Block 63 Kalikiliki is a different piece of land from Lot 3326/M Ibex Hill. iii) There being no fraud in the process of acquisition of the respondents' Certificate of Title, are the the respondents sole owners of Lot 3326 /M Ibex Hill. iv) The Surveyor-General to survey Lot 3326/M Ibex Hill to demarcate its exact boundaries. Any person found within its boundaries shall be deemed a squatter and shall be liable to conviction. v) Any person found in occupation of Lot 3326 /M Ibex Hill is to liable pay KS,000 to the respondents in nominal damages. vi) Costs follow the event, to be taxed in not agreed. 4.0 The Appeal 4.1 Dissatisfied with the Judgment of the High Court, the appellants launched this appeal, ra.1s1ng three grounds as follows: 1. The court below misdirected itself in both law and fact when it did not consider the defendant's defence and evidence that their 20 houses are not located on Lot Number 3326/M Ibex Hill Lusaka; 2. The court below misdirected itself in both law and fact when it ordered that the Surveyor-General surveys the subject property in order to ascertain the exact boundaries and prepare a report and held that should it be found that any person (including any of the defendants) are inside of Lot Number 3326/M Ibex Hill Lusaka, then they shall be deemed as squatters. 3. The court below misdirected itself in both law and fact when it awarded the sum of KS,000 as nominal damages for trespass from any person found to be on Lot 3326/M Ibex Hill Lusaka. 5.0 Appellant's heads of argument 5.1 At the hearing of the appeal, the appellants and their advocates were not in attendance. They filed a notice of non­ attendance pursuant to Order 10 Rule 18 (1) of the Court of Appeal Rules3. In support of the appeal, the appellants filed heads of argument dated 10th August, 2021 and heads of argument in reply dated 15th September, they 2021 which entirely relied upon. It was argued that the appellants defence was that they were in occupation of Block 63 Kalikiliki and not Lot 3326 / M Ibex Hill Lusaka, with supporting testimonies to the effect that they occupied the respective pieces of land at various times since 1999 and by 2005, some had built structures and already had water and electricity. That as such, when the respondents purchased Lot 3326 /M Ibex Hill Lusaka, the 20 houses were already erected at Block 63. 5.2 The appellants advanced further that if these structures were on Lot 3326 /M Ibex Hill Lusaka when the respondents purchased it, the respondents would have seen the structures. The existence of the developments is further supported by a letter by Lusaka City Council dated 15th September, 2004, a year before the respondents purchased Lot 3326/M Ibex Hill Lusaka. This letter confirms the legal status of Block 63 Kalikiliki. 5.3 In summary, counsel argued in support of the first ground of appeal that had the court considered the appellant's defence and evidence, it would have dismissed claim, the respondents' given the court's finding that Block 63 Kalikiliki is a different piece of land from 3326 / M Ibex Hill Lusaka. 5.4 In support of the second ground of appeal, the appellants argued that the survey report should have been sought and produced during trial and not afterwards. That in the circumstances, procedural justice was compromised, as the appellants were denied the opportunity to cross-examine the author of the report on its accuracy. 5.5 In addition, that the court did not make a determination as to who was a squatter, but left it to be determined by the survey report, which has not resolved the issue as it has not stated that any of the respondents were found to have been occupying Lot 3326 /M Ibex Hill, Lusaka. The issue of whether the appellants are squatters therefore remains inconclusive. 5.6 In support of the third ground of appeal, counsel argued that it was a misdirection for the lower court to award K5000 in nominal damages for trespass despite not having made a determination that the appellants were squatters. Further, that the sum of KS, 000 per person is not only excessive and punitive but also offends the principles upon which nominal damages are awarded. We are urged to set aside the award for costs. 6.0 Respondents' heads of argument 6.1 In response to the first ground of appeal, Mr. Katati, learned counsel for the respondents, relied on heads of argument filed on 8th September, 2021. It was argued that contrary to the appellants' assertions, the learned Judge did consider the appellants' defence and evidence as can be seen by references to the same in the judgment. Further, that the appellants' argument that they started building on the land in dispute before the respondents purchased it lacked merit, as the 1st respondent testified that when they purchased the land in 2005, it was bare and only had a borehole and a servant's quarter. 6.2 In response to the appellant's assertion that they were provided with social amenities such as electricity and water, the respondents argued that such services can be provided even on illegally acquired structures and does not change the fact that they built on land belonging to the respondents. Further, that Lusaka City Council denied having allocated 3326 /M Ibex Hill, Lusaka to the appellants, stating that it is under the jurisdiction of the Ministry of Lands. That the court made findings based on these considerations. We were urged not to interfere with the lower court's findings. The case of Wilson Masauso Zulu v Avondale Housing Project Limited1 was cited to this effect. 6.3 Responding to the second ground of appeal, the respondents argued that the lower court's order directing the Surveyor­ General to produce a report was necessary the to determine exact boundaries of the property and to identify structures It was argued further built within the respondents' property. that the demarcations of the land have been the same even with the previous owners of the land, as confirmed by the survey report. Further, the location, size and co-ordinates of the land are the same as those on documents provided in the respondents' bundle of documents. As such, the appellant's argument that the report should have been ordered to be produced before close of trial so that it could be subjected to cross examination lacks merit. 6.4 Reacting to the appellants' argument that the trial Judge did not address the question of who a squatter is, the respondents argued that the lower court in fact ruled that whoever will be found to be within the demarcations of 3326/M Ibex Hill, Lusaka after a survey is conducted will be deemed to be a squatter. That according to the survey reports, the Google image shows that the image in question built is full of illegally structures by the appellants. That as such, the survey report has conclusively dealt with who is to be deemed to be a squatter. 6.5 It was argued in relation to the third ground of appeal that the award of KS,000 as damages for trespass against every respondent is reasonable in the circumstances, as the trespassers have prevented the respondents from using the subject property. 7.0 Appellants' arguments in reply 7.1 On 15th September, 2021, the appellants filed heads of arguments in reply. Replying the first ground of appeal, the appellants argued that it was not enough for the lower court to merely state that it had taken into all the consideration evidence in record. That a judgment must contain a review of the evidence, as guided by the Supreme Court in the case of Ministry of Home Affairs v Habasonde2. In this regard, it was argued that the lower court ignored the appellants' evidence that their houses are not located on Lot 3326/M Ibex Hill, Lusaka but in Block 63 of Kalikiliki Compound. 7.2 That the court should have evaluated this evidence and made a finding thereon, including the evidence that contradicted the respondents' testimony that when they bought the land, it was bare, save for a borehole and a small structure. Counsel submitted that since the land that the respondents purchased was bare land at the time, it cannot be the same land that the appellants built their houses on before the respondents bought their land. That in any event, although the respondents' witnesses stated that Lusaka City Council has no authority to allocate land that is under the jurisdiction of the Ministry of Lands, none of them said that the 20 houses are located on Lot 33/M Ibex Hill. Lusaka. 7.3 The appellant reiterated in reply to the second ground of appeal that they are not challenging the power of the lower court to order a survey report, but that the issue of who is a squatter should have been determined and in the judgment not left to the whims of a non-juridical person. 7.4 In reply to the third ground of appeal, the appellants mainly emphasized that nominal damages signify a small amount of money awarded to a plaintiff whose legal rights have been technically violated but who has not established that they are entitled to compensatory or exemplary damages, as the case maybe. 8.0 Consideration of appeal and our decision 8.1 The issue that we are tasked by this appeal to determine is whether the lower court properly applied the law in the manner it employed in arriving at the conclusion that anyone found in occupation of Lot 3326 /M Ibex Hill, Lusaka, after a survey by the Surveyor-General, shall be deemed a squatter. 8.2 In its quest to ascertain the ownership of Lot 3326/M Ibex Hill, Lusaka, which the respondents asserted was encroached on by the appellants, the learned Judge resorted to evidence supporting the process of the respondents' acquisition of title and found that there was no fraud in the process and therefore, it was credibly obtained. The Judge then resorted to section 33 of the Lands and Deeds Registry Act4 and declared the respondents as the sole owners of Lot 3326/M Ibex Hill, Lusaka. 8.3 When ascertaining the respondents' claim for vacant possession, the court ruled that a person occupying the respondents' property without their permission is classified as a squatter. As regards the appellan ts' defence, the trial Judge said as fallows at page J 11: "The defendants have contended that they are not squatters but are in possession of valid occupancy licences obtained from the Lusaka City Council. This evidence, however, does not aid the defendant's case in view of the fact that the Lusaka City Council has clearly stated that they have no jurisdiction over land which is under the control of the Ministry of Lands. This entails that the defendants' case has no visible leg to stand on." 8.4 It is on this basis that the learned Judge ordered a survey of Lot 3326 /M, Ibex Hill in order to establish the proper boundaries of the respondent's land, such that whoever is found thereon shall be deemed a squatter. The appellants are challenging this approach taken by the learned Judge in upholding the respondents' claim for vacant possession, on the basis that their defence that their 20 houses are not located on Lot 3326 Ibex but on Block 63 was not given due consideration, especially that the court found that Block 63 Kalikiliki is a different piece of land from 3326/M Ibex Hill, Lusaka. 8.5 A reading of the lower court's judgment shows that the learned Judge considered the evidence relating to the ownership history of Lot 3326/M Ibex Hill Lusaka. She stated at page JS that: "The evidence on record has revealed that Lot 3326/M was initially leased to Andrew Musonda by the Republican President on 14th September 1988. Andrew Musonda sold the property to Jacob La.meek Shuma who was subsequently issued with a Certificate of Title on 2nd June 1992. Lot 3326/M Ibex Hill, Lusaka was thereafter offered to the plaintiffs. Subsequent to the offer, the plaintiffs and one Jacob La.meek Shama entered into a contract of sale relating to the same on 21st September 2005." 8.6 This evidence shows that the subject property had existed on title as far back as 1988. The Judge also analysed the evidence to the effect that the respondents adhered to all the legal requirements for acquisition of title. On the other side, the record has evidence to the effect that at the time the respondents purchased Lot 3326M, the appellants had already built structures on Block 63 as evidenced by documents relating to payment towards water and electricity bills and the correspondence regarding water connection prior to 2004. In response to this, the respondents' position is that services such as electricity and water can be provided even on illegally acquired structures and does not change the fact that they built on land belonging to the respondents. 8. 7 The lower court's declaration for vacant possession was mainly anchored on two findings: that the appellant's possession of a valid Certificate of Title establishes exclusively their ownership of the land and secondly the Lusaka City Council denied having jurisdiction over land belonging to the Ministry of Lands and as such, the appellants' claims have no legal basis. 8.8 It must be borne in mind that at all material times during the appellants' occupation of the subject land, the said land was on title since 1988 but was at the time owned by Lameck Shuma, before he sold it to the respondents in 2005. To this extent, the interests of the proprietors of Lot 3326 /M Ibex Hill, Lusaka have at all material times since 1988 been protected by the provisions of secti.on 33 of the Lands and Deeds Registry Act supra as proof of ownership. Further of essence is the evidence of DW3, a legal officer, at Lusaka City Council who confirmed that the Council does not give ownership documents for land which is on Certificate of Title, and that Ibex Hill is not in a statutory improvement area. 8.9 The Supreme Court stated as regards rights of a holder of a Certificate of Title in the case of Prisca Lubungu v Obby Kapango and Ndola City Counci'13 that: "An owner of land under a Certificate of Title given under the Lands and Deed Registry Act, has bestowed upon him/her a bundle of legal rights. Those rights include the right to quiet and exclusive possession, the power of control of use, enjoyment of the land and the unfettered power of disposition of the land." 8.10 We cannot fault the approach taken by the learned trial Judge by securing the legal interest of the respondents' as legitimate holders of title to Lot 3326 /M Ibex Hill on the strength of secti.on 33 of the Lands and Deeds Registry Act, which provision has protected the rights of proprietors of Lot 3326 /M Ibex Hill since 1988, when the first title was issued. This also entails that the land is excluded from the control of Lusaka City Council, as confirmed by the appellants' from witness Lusaka City Council. We uphold the lower court's order of declaration of the respondents as the owners of Lot 3326 /M Ibex Hill, Lusaka. 8.11 The finding that persons found in occupation of Lot 3326/M Ibex Hill should be deemed squatters was as a result of the success of the respondent's claim for vacant possession. Indeed, one with proprietary to its rights over land is entitled quiet enjoyment. However, since the appellants to be claimed in legal occupation of Block 63 Kalikiliki, which according to them is different from Lot 3326 /M Ibex Hill, Lusaka, they could not be deemed to be squatters in the absence of any finding that they in fact occupied the respondents' land. 8.12 The learned Judge took the view the appellants or a part of them would be found to be on Lot 3326/M Ibex Hill Lusaka after the Surveyor-General had conducted a survey of the disputed land. She made no order directed to the Minister responsible for land to compel him to order a resurvey in terms of section 19 (1) (SJ and (6) of the Land Survey Act5 which provides as follows: "19. (1) Whenever- (a) the owners of not less than one-half of a section or block of registered parcels of land apply to the Surveyor-General for a re-survey of such section or block; and (b) the Surveyor-General reports that the boundaries of the several parcels of land constituting such section or block are confused and need adjustment; the Minister may order that such section or block be re-surveyed. (SJ The Minister may direct that the costs of any such re­ survey be recovered by the Surveyor-General proportionately from the respective owners in such manner as the Minister may direct. (6) Upon payment by an owner of any parcel of land of all costs due by him in respect of a re-survey ordered under this section, a Government surveyor shall cancel the existing registered diagrams of such parcel of land and shall issue for registration in lieu thereof a new approved diagram." 8.13 We find that the order of a survey without recourse to the court making its findings on the report of the Surveyor­ General was a misdirection on the part of the learned trial Judge. In effect, the learned Judge put the cart before the horse. She left the parties to the whims of a non-judicial officer. In the case of James Chungu v Nyokasi Chitaya and 2 others4, a matter involving a boundary dispute, we held inter alia that the discretion to order the payment of costs of a re-survey lies with the Minister. We further held that the trial court did not make any order directed that to the Minister would have the effect of compelling him to order a re-survey and thereby diminish his discretion to order costs. 8.14 In like manner in the present case, we find no order directed to the Minister with the effect of impelling him to order a re­ survey. We find that the outstanding issues in this dispute have been narrowed to the fallowing issue for determination: - Whether or not the appellants have encroached on the respondents' Lot 3326/ M Ibex Hill, Lusaka? 8.15 At the hearing, we asked Mr. Katati to confirm if the survey report at page 4 of the supplementary record of appeal included a finding that the appellants were squatters. Running the risk of testifying from the bar, counsel could only ref er us to page 5 of the supplementary record of appeal depicting the boundaries of Lot 3326 / M ibex Hill. Therein lies the predicament of this matter. 8.16 From the Judgment of the lower court, we find that there was no order for a re-survey of the disputed to the land directed Minister and the survey report rendered to the court for its findings. There was no order joining the Attorney-General to these proceedings. 8.17 In light of the findings above, the award complained of in the third ground of appeal was prematurely granted. The third ground of appeal is rendered otiose as it is dependent on the lower court's final findings. 8.18 In the circumstances, we set aside the Judgment of the lower court to the extent that there was no determination that the appellants were squatters on the respondents' land. Further, there was no order joining the state to these proceedings. 9.0 Conclusion 9.1 For reasons set out above, this appeal only succeeds partially, to the extent stated. We order that the matter be sent back to the lower court to be tried before a different Judge. 9.2 Costs will abide the outcome of the trial in the lower court. D. L. Y. Sichi a, SC COURT OF APPEAL JUDGE A. N. Patel, SC Y. Chembe COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE 18