Makeni Farming Development Ltd v Webby Chauluka and Ors (APPEAL NO.72/2023) [2025] ZMCA 45 (27 February 2025)

I N THE COURT OF APPEAL APPEAL 169 OF 2020 H OLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: A D WEBBY CHAULUKA MOFFAT LUNGU MOSES SIMUSOKWE APPELLANT 1 ST RESPONDENT 2 ND RESPONDENT 3RD RESPONDENT CORAM: KONDOLO SC, MAJULA, MUZENGA JJA On 20th February, 2025 and 27th February, 2025 For the Appellant: Mr. K. Kombe of Messrs Kombe of Messrs Andrew & Partners For the Respondent : Not in Attendance JUDGMENT K NDOLO SC JA delivered the Judgmen~ pe _Co~ • l /' ____ _ - ' ' ~ul f , .._,4..,v .,,__ " , 1 Ft. B 1015 , J2 of 23 CASES REFERRED TO : 1. Anti-Corruption Commission v Barnett Development Corporation Limited (2008) Vol. 1 ZR 69 2 . Wilson Masauso Zulu v Avondale Housing Project ( 1982) ZR 172 (S. C.) 3 . Zambia Revenue Authority v Dorothy Mwanza & Others 2020 ZR 2 181 4 . Amchile Import & Export Limited and Others v Ian Chimanga (T / A Tawana Business Ventures) & Another [2019] ZMC 268 5. Rosemary Bwalya, Attorney General & Commissioner of Lands v Mwanamuto Investments Limited SCZ/8/2012 . LE G ISLATION & PUBLICATIONS REFERRED TO: 1. Land Conversion of Titles Act No . 20 of 1975 2. Lands Act, Chapter 184, Laws of Za mbia 3. High Court Act Chapter 27 Laws of Zambia 4. High Court Rules Chapter 27 Laws of Zambia 5. Court of Appeal Rules S. I. (16) of 2016 6. Matibini Patrick. Zambian Civil Procedure: Commentary and Cases, Durban, LexisNexis, 2017 7. Blacks Law Dictionary, 8 t h Edition 8. Court of Appeal Rules of 2016, Laws of Zambia 9. Order 59 Rule 13(1) The Supreme Court Rules, 1999 Edition [Whitebook] (RSC) . J3 of 23 1 . INTRODUCTION 1.1. This appeal is against the Judgement of Ms. Justice M. C. Mulanda delivered on 31 st July , 20 18. 1. 2. The 1st, 2 nd and 3 rd Respondents were th e 1st, 2 nd and 3rd Applicants in the High Court. 1. 3. The 1st Respondent P. C. G. Ngulube and the 2 nd Respondent Makeni Estates Limited in the High Court, are not parties to this appeal. 1.4. The Appellant was joined to the action upon application, after judgement had been delivered. 1.5. We shall refer to th e parties as the Appellant and Respondents. 2 . BACKGROUND 2 .1. The Respondents filed a motion in the High Court seeking a vesting order in relation to Subdivision 2 of Farm No . 288a Makeni Lusaka. J4 of 23 2 .2 . Respondents' Case (Applicants in the High Court) 2 .3. The Respondents ' affidavit in support of the application alleged that the land was originally part of the Chilongolo ancestral lands. 2.4. The 2 nd Respondent in the High Court (Makeni Estates) was the title holder of the land before the subdivision was made. In 1956 the Makeni Estates asked the Chilongolo community to form a committee so as to decide how it could be given ownership of the land. 2.5 . That the committee faced some challenges and it was decided that the 1st Respondent in the High Court (P. G. C. Ngulube) holds the land in trust for the community. The land was originally freehold and the relevant documents were filed with Ministry of Lands on 25 th June , 1975 together with an application for an underlease. However, five days later freehold tenure was abolished in Zambia and the application for an underlease was overtaken by events because Farm 288a ceased to vest in Makeni Estates. . ' JS of 23 2 .6. That all the members of the committee had passed away and the whereabouts of Mr. Ngulube are presently unknown and by 6 th September, 2017 the ground rent bill stood at Kl8 ,998 and the Ministry of Lands had warned the community to settle the bill. However, none of the families were willing to pay the ground rent until a vesting order is granted by the Court. The Respondents feared that the State would re-enter the land. 2 7. The Respondents further alleged that a company called Florinyimba located next door to Farm 288a had requested the commissioner of lands to re-enter the land . 2 .8. Respondents Case in the High Court 2 .9. Service of the process was effected by substituted service. 2 . 10. The Respond en ts did not defend the matter in the High Court. 2 . 11. High Court Proceedings 2 . 12. At the hearing, the 3 rd Respondent on behalf of the other Respond en ts told the Court that they were relying on their affidavit in support of the application and skeleton arguments. J6 of 23 2 .13. The Respondents submitted that nobody would be prejudiced if the Or der vesting Subdivision 2 of Farm 288a was granted. 2 .14. The Respondents explained that after freehold tenu re was put to an end by the Land Conversion of Titles Act No. 20 of 1975, Farm 288a was numb ered as Subdivision 2 of Farm 288a described on Survey Diagram No . 365 of 1982 and granted a 100 years lease by operation of law from 1st July, 1975. (see section 6 of the Act). The subdivision was given a d istinct ground rent account 246930 and the remaining extent of Farm 288a was given account n o. 237330 . 2 . 15. It was submitted that they had legitimate expectation from the Constructive Trust created between their community and Mr. Ngulube in 1968. That the Court had th e power to grant the application using its inherent jurisdiction to do justice pursuant to Section 13 of the High Court Act Chapter 27, Laws of Zambia and Order 3 Rule 2 of the High Court Rules Chapter 27, Laws of Zambia. 2 . 16. Respondents' Case 2 . 17. The Respondents did not file any affidavits in opposition. J7 of 23 3. HIGH COURT DECISION 3.1 . After considering the Applicants affidavits and submissions, the learned trial Judge made a finding that P. G. C. Ngulube , whose name appeared on the title deed actually held the land on behalf of the Chilongolo community. That the community never intended the land to belong to any one individual and therefore selected a committee to secure its interests. 3 .2 . That as such, a constru ctive trust was created between the committee and the community. Since all the members of the committee, except Mr. Ngulube, had passed away, the lower Court deemed Mr. Ngulube as the trustee under the constructive trust. 3 .3. The trial Judge was satisfied that th e Chilongolo Community had shown sufficient interest in Subdivision 2 of farm 288a. That the community had done everything in their power to trace Mr. Ngulube including applying for an order of substituted service which was granted and they complied with the terms of the Order. JS of 23 3.4. The learned trial Judge found that this was a proper case in which she could exercise th e courts inherent jurisdiction under section 13 of the High Court Act to grant a vestin g order as prayed by the Applicants and it was ordered that Subdivision 2 of farm 288a b e vested in the Chilongolo Community. The lower Court further order ed th e Registrar of Lands to register the subdivision a nd to issue a certificate of title in the names of the three Applicants as Trustees of the Chilongolo Community. 4 . APPEAL 4.1 . The Appellant decided to challenge the J udgment of the lower Court and has appealed on the following grounds; GROUND 1 That the learned trial Judge erred in law and in fact when she held that it was clear from the Affidavit that Subdivision 2 of Farm No. 288a referred to a section of the Chilongolo ancestral land that belonged to the Applicants forefathers, but was converted to Crown land under Farm No. 23a and 288a. J9 of 23 GROUND 2 That the learned trial Judge erre d in law and in fact when she held that the Chilongolo community constituted a three-man committee comprising of the Applicants for the purposes of securing the land which was still vested in the previous committee, through Mr. Ngulube unde r a constructive trust without proof of the same. GROUND 3 That the learned trial Judge erred in law and in fact when she held that after freehold lease was abolished on 30th June , 1975, the said Subdivision was converted to a statutory leasehold tenure when in fact Subdivision 2 of Farm No. 288a was never held in freehold by the 1st Respondent. GROUND 4 That the learned trial Judge erred in law and in fact when she held that Farm No. 288a Make ni, Lusaka was bequeathed by the 2 n d Respondent to the Applicants' community. GROUND 5 That the learned trial Judge erred in law and in fact when she held that the Subdivision was put, by the community, in the name of Mr. N gulube only for the purpose of expediting the registration process in the absence of evidence evincing the same. JlO of 23 GROUND 6 That the trial Judge misdirected herself when she noted that by virtue of the Land (Conversion of Titles) Act No. 20 of 1975, Subdivision 2 of Farm No. 288a ceased to be vested in the 2 n d Respondent. GROUND 7 That the learned trial Judge erred in law and in fact w h en she held that the Chilongolo committee nomina t e d Mr. Ngulube as Chairman of the committee, to be a Trustee, to hold the Subdivision in issue on behalf of the committee pending issuance of title deeds in the absence of evidence evincing the same. GROUND 8 That the learned trial Judge erred in law and in fact when she held that the Applicants did everything possible to locate the Respondents. GROUND 9 That as a consequence of the above , the learned trial Judge erred in law and in fact by ordering that Subdivision 2 of Farm No. 288a be vested in the Chilongolo community through the Applicants. Jll of 23 4.2. Appellants Arguments. 4.3. The Appellant decided to argue grounds 1, 2 , 4 , 5 and 7 together, fallowed by grounds 3 and 6 together. Grounds 8 and 9 were to be argued s eparately. 4 .4 . Grounds 1, 2, 4, 5, and 7 4 .5. In relation to these grounds the Appellant points out fac ts which it believes the Respondents should have proved before being granted the vesting order by the learned trial Judge. These can be itemised as follows ; 1. The Respondents provided no details or proof as to when and how their ancestral land was converted into Crown land und er Fa rms 23a and 288a Makeni 2. Insufficient evid ence was advanced by t h e Respondents to prove that subdivision 2 of Farm No. 288a is a section of Chilongolo ancestral land. 3. No documen t showing that the Respondents and th e committee they represen ted ever occupie d the subject land. 4. No document showing that the a lleged original committee comprising Matipa Bbelle, Abraham Bbelle and Ms. J12 of 23 Chilongolo ever existed and nothing to show that th e Responde n ts we re th eir descendants. There was no proof t ha t th e committee ever exis ted and that it mandated Mr. P. G. C. Ngulube to h old the land on their beh alf. 5. No proof that the Respondents or any member of the new committee h ave ever lived on or n ear the subj ect land. 6. o proof that the 2 nd Respondent bequeathed the subj ect land to the Cholongolo community . 4 .6. It was submitted that Section 33 of the Lands Act states that a certificate of title is conclusive evidence of ownership of land by a holder of a certificate of title . The case of Anti-Corruption Commission v Barnett Development Corporation Limited (ll was cited in support. 4 .7. It was further submitted that th er e was no eviden ce on record to justify the lower Court making a finding that a constructive trust had been created with Mr. Ngu]ube as the trustee. 4 .8. The case of Wilson Masauso Zulu v Avondale Housing Project'2 l was cited where the Supreme Court h eld that a party has a duty to prove its allegations whatever may be said of the opponent's case. Jl3 of 23 4 .9. We have been asked to upset the findings of fact made by the trial court which were not supported by evidence. In support of this submission , the case of Zambia Revenue Authority v Dorothy Mwanza & Others (3I was cited. 4.10. Grounds 3 and 6 4.11. The Appellant submitted that the lower Court erroneously held that the letter demanding ground rent to Mr. Ngulube showed that th e Commissioner of Lands had recognised him as the Chilongolo Community's trustee. 4.12 . It was argued that the letter to Mr. R. G. B. Ngulube for ground rent was not proof of ownership and to a large extent tended to show that Mr Ngulube had previously held the land in freehold which was later converted to leasehold by operation of law. 4 .13 . Ground 7 4 . 14. No arguments were advanced in suppor t of ground 7. Jl4 of 23 4.15. Ground 8 4.16 . Th e gist of the argument in ground 8 is that the lower Court was misled by the evidence addu ced in the Respond en ts affidavit in the application for substituted service. According to the Appellant, a visit to the subject land would have shown that there was a highly mechanised farm right next to it where they could have enquired about the whereabouts of the owner of the subject land. 4.17. It was submitted that when considered in tandem with the Respondents' failure to produce a copy of the certificate of title for the subject property, it was highly suspicious. 4 . 18. We shall not delve into the rest of the arguments under this ground for reasons to be explained in our decision. 4 . 19. Ground Nine 4 .20. It was pointed out that according to Blacks Law Dictionary a vesting Order is a Court Order passing legal title in lieu of a legal conveyance. 4 .21. That the learned trial Judges action of granting the vesting order pursuant to Section 14 of the High Court Act was , I Jl5 of 23 perverse because none of the r equired documents set out in the provision were presented by the Respondents. 5 . HEARING 5 .1. At th e hearing, the Appellant relied on the record of appeal and the Appellants heads of argument filed on 21 s t September, 2020. 5 .2 . It was submitted that the Respondents had fallen foul of Order 10 Rule 9 ( 16) of the Court of Appeal Rules by not having filed and served its heads of argument on the Appellant. 5 .3. Despite the Respondents being present, their advocate was a bsen t without notice. Furt h er, the Respon dent had not filed and served the Re spondents heads of argument on the Appellant. 5.4. We decided to proceed with hearing and determine the case on the basis of the process before court. 6 . DECISION & ANALYSIS 6 .1. We have considered th e record of app eal and the submissions on r ecord. Jl6 of 23 6.2. Grounds 1, 2, 4, 5 and 7 6 .3 . We observe that the length and breadth of the Respondents ' testimony and evidence in the Court below was basically contain ed in the Responden ts joint affid avit in support of the application filed before the High Court on 29Lh March, 2 018. 6 .4 . In support of the affidavit testimony the following documentary evidence was produced ; 1. Minutes of Meeting of the Chilongolo Community Held on the 22nd July 2017 at 14:30 hours At Plot No. 31689, Kafue and signed by the 1s t and 3 rd Respondent. In the said minutes ' bullets 4 and 5 state as follows; • Mr. Simusokwe [3rd Respondent] briefed the meeting that ground rent for subdivision 2 of Farm 288a remains unpaid for and the entire land remained leased by operation of law pursuant to section 5 of the Land (Conversion of Titles) Act No. 20 of 1975. Mr. Chauluka [1 st Respond ent] was adamant to release the document that the Ministry of Lands wrote confirming that the land was leased to the community through Mr. Ngulube. • The document was availed by Mr. Chauluka who said that he will keep it in Mpongwe where he stays because Indians a re after the land and giving the documents will make the Indians have the land. Jl7of23 In our view it 1s odd and susp1c10us that during proceedings, the 1 sL Respondent not only failed to produce the document from the Ministry of Lands confirming that the land was leased to the community through Mr. Ngulube but also provided no reason for not doing so. It was an essential document capable of validating the Communities claim to the land but not provided to the Court. 2 . Statement of account for ground rent dated 6 th September, 2017 and Letter from Lands department to Mr. PYC Ngulube dated 22nd November, 1984 demanding ground rent. All the statement of account and letter confirm is the the existence of subdivision 2 of Farm 288a and, in the absen ce of contradicting evidence, also confirm Mr. P. G. C . Ngulube as the holder of the certificate of title for the subj ect land . 3. Notification of Approval/Refuse [sic] of Planning Permission dated 25t h June, 1975 and addressed to Mr. P. G. C. Ngulube. The letter confirms Mr. P. G. C. Ngulube as the holder of the certificate of title for the subject land. J18 of 23 4. Letter from Florinyimba Limited to the Commissioner of Lands applying for allocation of subdivision 2 of Farm 288a claiming that it was vacant. This document has no relevance to this matter except to highlight that there are competing interests in the land. 5 . Receipt from Patents and Registration Agency dated 26th September, 2017, in respect of Chanyanya Ranching. This document equally has no relevance to this matter. 6 .5 . It is apparent that the Respondents provided absolutely n o proof to back any of the facts attested in their affidavit in support of this application. 6.6 . The learned trial Judge connected dots which weren't there . As correctly submitted by the Appellant, on the basis of unsupported facts , the learned trial Judge arrived at a number of perverse findings of fact such as; 1. Finding that subdivision 2 of Farm 288a, Lusaka formed part of the Chilongolo ancestral land 2. Finding that the Committee chaired by the 1st Re spondent took over from a committee tha t was bequeathed the land by the Appellant. Jl9 of 23 3. Finding that Mr. R. G . B. gulube was appointed by the previous committee to the subject land on behalf of the community as a trustee of a constructive trust. 6 .5 Even though appellate Courts seldom interfere with findings of fact, this case is an example of where such a course of action is unavoidable . In the case of Amchile Import & Export Limited and Others v Ian Chimanga (T / A Tawana Business Ventures) and Another (4 l Malila JS , as he then was, restated the Suprem e Court's position as follows: "To succeed, a party urging an appellate court to reverse findings of fact by a trial court, must demonstrate that the trial court made findings which were perverse or in the absence of releuant evidence, or upon a misrepresentation of facts, or that on a proper view of the evidence before the court, no trial court properly directing its mind to it could make those findings." 6 .7. In the premises grounds 1, 2, 4 , 5 and 7 have m erit and are consequently allowed. J20 of 23 6 .8. Grounds 3 and 6 6 .9. Grounds 3 and 6 are 1n relation to the learned trial Judges reasoning that the letter from the Commissioner of Lands demanding ground rent validated Mr. Ngulube as trustee of the Chilongolo Community. We see no correlation between the two as the only thing the latter seems to confirm is that Mr. Ngulube was the registered owner of subdivision 2 of farm 288a Lusaka. His ownership is protected by section 33 of t he Lands & Deeds Registry Act and can only be impugned by showing that it was obtained by fraud or impropriety. See the Barnet Case supra. The effect of the vesting order granted by the judge was that it interfered with Mr. Ngulube's property rights in the absen ce of an y document justifying the order. 6. 10. Grounds 3 and 6 therefore succeed. 6.11 . Ground 7 6 .12. As earlier indicated , no arguments wer e advanced in relation to ground 7 which consequently fails . 6 .13. Ground 8 6 .14. The Appellant's arguments in ground 8 resemble an attempt J21 of23 to introduce evidence from the bar. The Appellant has admitted that the trial Judge cannot be faulted for her findings in relation to grou nd 8 but has submitted that this Cou rt may in ra r e and compelling circumstances receive new evidence as well as consider relevant evidence not led before the lower Court. The Appellant has to that effect cited the book Zambian Civil Procedure by Dr. Patrick Matibini SC and th e case of Rosemary Bwalya, Attorney General & Commissioner of Lands v Mwanamuto Investments Limited l5l. 6. 15. As earlier indicated, the Appellant was not a party in the action but applied to be joined as a party after the lower Court granted the Respondents the vesting order. 6.16. However, after being joined to the action the Appellant made no application nor took any steps to enable its evidence to be received either in the lower Court or in this Court. • • 1 1 I \ ' J22 of 23 6.17. We find no compelling reason to depart from the norm and receive evidence in this manner. It is well established that matters cannot be brought up fo r the first time on a ppeal. This ground is therefore d ismissed. 6.18. Ground 9 6 .19. We agree with the Appellant th at Section 14 of the High Court Act pursu ant to which the learned trial Judge granted the vesting order quite specifically implies that the section can only be utilized where the following documents are present; conveyance, contract, negotiable instrument or other document. In short there m ust b e a document of some kind relevant to the matter. 6 .2 0 . In casu, no relevant document was produced and as stated in our reasoning under grounds 3 to 6, the learned trial Judge connected non-existent dots lead ing h er to granting a vesting order in favour of the Respondents , effectively divesting Mr. Ngulube of his ownership of subdivision 2 of farm 288a Lusaka. J23 of 23 6.21. Ground 9 has merit and having succeeded substantially on seven grounds this appeal succeeds and the vesting order granted by the lower Court is set aside. 6.22. The Respondents having not defended this appeal , each party shall bear its own costs. M. M. KONDOLO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE