Mandona v Malama (HP 1807 of 2014) [2015] ZMHC 163 (4 December 2015)

IN THE HIGH C AT PRINCIPAL LUSAKA (Civil Jurisd KABWE MANDDNA AND URT FDR EGISTRY ZAMBIA ction) , -, .-, - If _ ~_.~- 2814/HP/1S87 PLAINTIFF ALEXANDER MAL MA DEFENDANT efore Honorable Mr. Justice (. F. R Mchenga SC For the Plain iff: No appearance For the Defen ant: P. Mulenga, Paul Mulenga & Associates R U LIN G The defendant has pursuant to Order 14A Rule and 2 of the Rules of the Supreme (our read togelher with Practice Direction NO.1 of 2002, raised two pr liminary issues. These are: 1. Whether or not this cause of action is competent and properLy before (ourt in view of the provls ons of Section 4 and 16 of the Lands TribunaL Act 39 of 2818; and 2. Whether or not in vicloJ of (1) above the marter is LiaMe for dismissaL on the grounds of being i regular, a nutlity and for wont of jurisdiction. At the heari g, Mr. Bwalya relied on the application and skeleton arguments fi ed on 3rd November 2015. He pointed out that the plaintiff, in his statement of claim, seeks reliefs including: J2 1. DecLaratio that he is the LegaL owner of portions of Land known as Stands No. L28285/M and No. 28 556 situated in Lusaka West. 2. An order a interim injunction against the defendant. He referred t Sections 4 and 16 of the lands Tribunal Act, Act No. 39 of 2818 ~nd ubmitted that the jurisdiction to hear and determine land matters is n w vesled in the lands Tribun<:ll. He also submitted that the High (au t no longer has original jurisdiction in Land matters; it can only de 1 with them when they come on uppeal from the Lands Tribunal. He then referred to the case of Zambia National Holdings Limited and m v The Attorney General [1994} l. R. 22 and submitted that lhough the High Court has unlimited original jurisdi ction, its jurisdiction is not limitless; the Lands Tribunal Act has limited the jurisdiction f the court, counsel argued. Finally, Mr_ Bwalya referred to the cases of Matridah Ngulube v Hilda Malasha and 3 Others 2013/HP/0773 and Precious M Mwetwa VS Inonge Wamui and 2 others, 2014/HP/1104 in which my learned brothers, Mr Justice Kond 10 SC and Mr. Justice Chilabo SC, respectively, decided that followi g the enactment of the Lands Tribunal Act, the High Courl no longer has original jurisdiction in land matters. I am indebte to counsel for his submissions and I hLlve taken them into account -n arriving at my decision. J4 (c) generaLLy to inquire Dnd adjudicate upon any matter affecting the Land rights and obLigations, under this ~ct, of any person or the Government; aod (d) to perform such acts and carry out such duties as may be prescribed under this Act or any other written Law. In extent of the tribunal's jurisdiclion ~s it was established under the Lands A was considered the C<lSC of Kawana Mwangela v Ronald Bwale Nsokosh" and Ndola City Council (SCZ Judgment No. 29 of 2eaa) "In oar co sidered opinion a reading of Section 15 and 22 of the Londs Act shows quite cLearLy th t the jurisdiction of the Londs TribunaL is Limited to the settLement of "Land disp tes" under the Act and is not an alternative forum to the High Court where parties ca go to, even [or the issuance of prerogative writs such as mandamu.~." Coming to th jurisdiction of the tribunal under Section 4 (1) of the lands Tribun I Act, it is my view that the provision does not vest exclusive or ginal jurisdiction in land matter in the tribunal. What it has done is to extend the scope of matters the tribunal can adjudicate 0 er and the range of remedies it can award. The provision does not sta e that matters set out in clauses a-i of subsection 1 can only be adju icated on by the Lands 'ribun<.llbut that it now has the powers to dea with those issues and the remedies set out therein. I also find hat Section 16 (l) of the Lands Tribunal Act does not limit the ju isdiction of the High Courl lo being thal of an appellate court. The H'gh Court will only be an appellale courl in cases where a land matter 's commenced in the lands "Tribunal and there is an ilppeal against its d cision. J5 This being t e case, I find that this matter is properly before the High Court. T e objections are dismissed. Costs will be in the cause and leave to appeal is granted. Oelivere in chambers at Lusaka this 4th day of December, 2015