Andrew Dolopo v Jackson Chime (APPEAL No. 159/2018) [2019] ZMCA 322 (12 November 2019)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL No.159/2018 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ANDREW DOLOPO APPELLANT AND JACKSON CHIME RESPONDENT CORAM: Chashi, Mulongoti and Lengalenga, JJA On 21 s t August, 2019 and 12th November, 2019 For the Appellant: Mr. F. S. Kachamba of EBM Chambers For the Respondent: Ms. S. Kalima of J & M advocates JUDGMENT Mulongoti, JA, delivered the Judgment of the Court Cases referred to: 1. Khalid Mohamed v The Attorney General (1982) ZR 49 2. U-Rest Foams Limited v Puma Botswana (pty) Limited and another- SCZ Selected Judgment No. 27 of 2018 3 . Anti-Corruption Commission v Barnett Development Corporation Limited (2008) Volume 1 ZR 69 4. Jones v Chapman (1849) 2 Exch 803 Legislation referred to: l . The Lands Act Chapter 184 of the Laws of Zambia 2. The Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia 1. 0 Introduction 1.1 This is an appeal against the Judgment of the High Court by Judge Banda-Bobo sitting at Lusaka. Judge Banda-Bobo found that the respondent is a bonafide purchaser for value of Lot No. 10975, Kabangwe in Chibombo. 1.2 The trial Judge dismissed the appellant's assertions that the land in question was part of the land owned by Swetrade Investments Limited. 1. 3 Upon consideration of the evidence, including a surveyor's report, the Judge concluded that, the appellant who occupied Lot No. 10976 had encroached on the respondent's Lot 10975. 2. 0 Background 2 . 1 The respondent sued the appellant claiming the following: (i) Damages for trespass and injury to the plaintiffs land; J2 (ii) For an Order of Interim Injunction restraining the defendant, his employees or servants or agents or whosoever from trespassing on the plaintiffs property, Lot No. 10975/M situate at Kabangwe Kabwe in the Chibombo District of the Republic of Zambia and from erecting, constructing or building of any building of whatever nature on the plaintiffs said property; (iii) Interest on the amount to be found due and payable by the defendant to the plaintiff, and (iv) Costs. 3. 0 Evidence Adduced in the Court Below: 3 .1 The plaintiff now respondent, alleged that the defendant now appellant had, without legal justification, removed beacons bordering his (respondent's) property Lot 10975/M and Lot 10976 /M belonging to the appellant. Thus, the appellant encroached into the respondent's property by 90 metres. 3.2 The appellant denied the respondent's allegations. He averred that it was in fact the respondent who had uprooted his beacons and those of the other tenants in the neighbourhood. 3.3 The plaintiff testified that he bought Lot 10975 from a Mr. Samuel Chiwambo and obtained a certificate of title in 2007 . 3 .4 After he noticed that the appellant had encroached on his plot, he involved the office of the Surveyor General. J3 3.5 PW3 Mudenda Fozarly, a surveyor from the Ministry of Lands (MOL) surveyed the whole of Lot No. 109752/ M (which en compassed the appellant's and r espondent's plots) in the presen ce of the appellant and the respondent. 3 .6 PW3 prepared a report (at p age 2 05 of the r ecord of a ppeal) which stated his findings tha t : (a) Lot 10975 was surveyed in February, 1999 which means that it was created earlier (as per attached approved survey diagram). Where as, p lot ( 1528 A4 Minestone Road) was given to the original owner Mr. Nalishebo Likando in November 2002 by the Village Department Committee. This means that the Officers from the Technical Field Services of the Ministry of Agriculture who prepared the maps for plot (1528 A4 Minestone Road) the area bordered blue over-look ed the existence of Lot 1 0975/ M by the area bordered red (see attached sketch plan) this resulted in the encroachment. The overlapping area shaded red is the one Mr. Andrew Dolopo Matome 's plot is encroaching onto Lot 10975/ M (refer to the attached sketch plan and the site plan) (b) It was also discovered that although the legal process of acquiring land in the traditional land was followed, the number (1528 A4 Minestone Road) is actually wrong. There is no such numbering at Ministry of Lands hence it is not captured in the system. 3 . 7 In cross examina tion, PW3 testified tha t he got the information about the survey from the approved survey dia gram, which is the initial survey or parent diagram of the property. When J4 referred to the parent diagram at page 13 of the plaintiffs (respondent) bundle of documents, he stated that the parent diagram number only appears when there is a subdivision. In casu, there was no subdivision. 3.8 Upon further cross examination, he said he got the survey information from survey diagram no 175 / 2000 as a final product. 3 .9 He said the coordinates were not on the diagram at page 13. However, he insisted that the property was surveyed and the survey coordinates could be derived from the distances and angles referred to in the top left corner of the said document. · 3 .10 He said the survey of the property in question was done as a single remit in 1999 diagram per diagram No. 2001. 3.11 PW3 admitted that he never consulted the Ministry of Agriculture when surveying. He said he relied on the information at the MOL. He conceded that Lot 10975 and Lot 10976 were part of the land owned by Swetrade Investments Limited. 3.12 The appellant testified that the respondent was his neighbour in Kabangwe. He owned Lot No. 10976 which he bought as traditional land from one Nalishebo Likando in March, 2007. He JS was given two letters one from the Village Headman Mpandika to Chieftainess Mungule and Kabwe District Council and one from Chieftainess Mungule to the Chibombo Council Secretary, which was a letter of recommendation. 3.13 He then approached the MOL to inquire if he could apply for title deeds. He was told that the land in question had a problem which was yet to be resolved as it belonged to Swetrade Investments Limited which held a certificate of title No. 154 75. He verified this information with Headman Mpandika and others in the community, and all confirmed it. 3.14 DWI referred to the map of the area (Kabangwe Small Holdings) and identified his plot, Lot No. 10976 and 10975 for the respondent. According to the appellant, the respondent's plot was 6 hectares and there was no encroachment on it by anyone. He maintained that the whole land was known as property No. F7048, and was owned by Swetrade Investments Limited and is on title. Thus, everyone else including the respondent and himself were all squatters. 3.15 It was his testimony that No. 152884 was just a reference number and not the number for his plot as stated by PW3. J6 3.16 According to him, PW3 was biased because he did not allow the appellant to have his lawyer present and yet the respondent's lawyer was present during the verification of beacons. 3 .17 DW2, a senior registrar of Lands and Deeds at the MOL, produced a certificate of title for Farm 7048 in the name of Swetrade Investments Limited. She also referred to a letter written by the commissioner of lands to the people who were occupying Farm 7048. 3.18 In cross examination she testified that the comm1ss10ner of lands' letter recognised that some of the people like the ' respondent had certificates of title. This is why it is stated that the same would be cancelled. 3 . 19 She said, she did not know the current status of the respondent's certificate of title. 3.20 DW3 a farmer in Kabangwe and a neighbour to the appellant and respondent, testified that the respondent took part of his land and that he was a quarrelsome person who had brought confusion in a once peaceful community. That the relationship between the appellant and the respondent was really bad, the latter insulted the former over boundaries and yet they do not share boundaries. J7 3.21 DW4 was the Senior Lands Officer at MOL. He testified that the properties numbered 10962-10986 Kabangwe were all part of Farm 7048 belonging to Swetrade Investments Limited. When the commissioner of lands discovered that the plots were created on titled land, they were cancelled. According to the letter, the commissioner of lands wrote to those affected like the respondent, he said h e would work with Chibombo Council to find alternative land for them. 4. 0 Evaluation of the Evidence and Decision of the Court Below 4 . 1 The learned High Court Judge reached her conclusions, which are summarised above at paragraphs 1. 1 to 1.3 of this Judgment by reasoning found around various parts of her Judgment inter alia that: 4 . 2 It is clear from section 33 of the Lands and Deeds Registry Act that once a certificate of title is issued, it becomes conclusive evidence of the ownership of the land to which it relates. She reasoned that this implies that once a person is issued with a certificate of title, it raises a presumption that the person followed the requisite procedures for obtaining title to land. The trial Judge concluded that this presumption, being rebuttable, J8 could be dislodged by fraud 1n accordance with section 33 aforestated. 4 .3 The Judge noted that the standard of proof for an allegation of fraud is higher than proof on a balance of probabilities, but lower than proof beyond reasonable doubt. She observed that the appellant's pleadings did not allege fraud with sufficient particularity and did not prove it to the required standard. 4.4 She elucidated that the survey report and certificate of title having been issued to the respondent proved that the relevant authorities were engaged and all requisite procedural requirements were followed before title was obtained. Furthermore, that the appellant failed to adduce credible evidence that cast doubt on the conclusiveness of the respondent's title. 4.5 Regarding the question whether the respondent was a bonafid~ purchaser for value, the learned Judge , observed that he had testified that he conducted a search at MOL and concluded all the necessary requirements prior to obtaining title . She explained that though the certificate of title did not indicate or contain co-ordinates in the appropriate column nor did it have a parent diagram number at the bottom of it, there was no J9 dispute that it was a document obtained from the MOL registry on 7 th December, 2007. And, PW3 testified t h at it was authentic as it was signed by relevant governm ent officials. The ref ore, s h e conclud ed that the respondent was a bonafide purchaser for value without notice. 4.6 Upon further consideration of the evidence adduced, the learned Judge found that the appellant had encroached and tr espassed on the respondent's land. She awarded the respondent damages for t r espass to be assessed by the Deputy Registrar and costs for the action. 5.0 The Appeal 5 . 1 Dissatisfied with the Judgment of the lower court, the appellant appealed to this Court as follows : 1. The lower court misdirected itself in law and in fact by: a. Making a finding that both the appellant and respondent have separate pieces of land situated in Kabangwe and then went on to contradict herself by saying that the plaintiff had a certificate of title to the disadvantage of the defendant. b. Deciding from the respondent's holding of title that there is a presumption that the respondent followed the proper procedure JlO when the commissioner of lands being landlord admits that the respondent's land was created by mistake on Swetrade's land. c. Deciding that the respondent's certificate of title was conclusive evidence of his ownership when it is clear that it was a result of a mistake which must be rectified in order for the country to have accurate records. d. Creating precedent that wrongly acquired property can be turned right by the wrong doer simply selling the same property. e. Having recourse to the Survey Act when the person that decides who should get what land is the commissioner of lands. f. Creating a precedent that overrules provisions of the Lands Act which makes the commissioner of lands landlord because a survey which has not been authorised by the commissioner of lands can be impeached. g. Saying that the appellant had trespassed on the land when the trespasser is the respondent who is undoubtedly on Swetrade's land despite having a certificate of title. h. finding that the appellant is a trespasser when he is not. 1. Finding that the appellant must pay costs when the defendant has helped to develop the law on the subject. Jll 6 .0 The Arguments 6 . 1 Both parties filed heads of argument for and against the grounds of appeal respectively. 6 .2 In support of the appeal, Mr. Kachamba, who appeared for the appellant, argued in ground l(a), (b) and (c) that the Judge ignored the fact that the commissioner of lands' and the Chief Registrar's offices had stated that the appellant's and respondent's land in question were situated on land allocated on title to Swetrade Investments Limited. We were urged to take judicial notice of the fact that there are titles which for all intents and purposes appear to be genuine and for which people have lost money out of relying on the presumption of correctness. The situation in this case can be corrected by either first, cancelling Swetrade Investments Limited's certificate of title or repossessing its land and thereafter dealing with the new entrants to the land. 6.3 Learned counsel amplified that the respondent's certificate of title was clearly issued by mistake which must be rectified as non correction could lead to a national disaster. J12 6.4 In relation to ground l(d) it is argued that the case creates a precedent which is against the law and public policy because mistakes in the Zambian land records when identified must be corrected to stop people from benefitting from malpractices. 6.5 In ground l(e) and (f) Mr. Kachamba submitted that for any survey record to be legally correct, it must be based on land that the commissioner of lands as landlord, has declared to be available for allocation. 6.6 Regarding ground 1 (g) and (h) on trespass, it is contended that the appellant should not have been found guilty of trespass as he cannot be a trespasser because the respondent was wrongly given title to Swetrade Investments Limited's land. Additionally, that the court erred when it condemned him to costs because he has helped the respondent to have his possession of the land corrected. 6 . 7 The appellant equally relied on his submission made in the lower court appearing at pages 154 to 200 of the record of appeal. The gravamen of the submissions was that DW2 and DW4 both confirmed that the plaintiff (respondent's) land was within F /7048 legally held on title by Swetrade Investments Limited. Thus, the respondent is a squatter and trespasser on J13 Swetrade Investments Limited's land. PW3 testified that the encroachment between the appellant's and respondent's land was caused by the Ministry of Agriculture and not the defendant (appellant) . Yet, when he conducted the survey, PW3 neglected to consult the Minister of Agriculture, his survey report should therefore be discredited. 6 .8 At the hearing of the appeal, Mr. Kachamba augmented his heads of argument. He submitted that the court below totally ignored the evidence from the Chief Registrar's office which showed that the land was registered to Swetrade Investments Limited. It also ignored the Lands Tribunal Judgment, which was never appealed against, that the land is for Swetrade Investments Limited. Counsel maintained that even the commissioner of lands' letter that the land was held on title by Swetrade Investments Limited and that he was in the process of rectifying the records vis a vie the respondent's certificate of title was ignored. 6. 9 In response to questions from the Court, as to why Swetrade Investments Limited was not joined as a party, Mr. Kachamba stated that it was unnecessary to do so. According to counsel, J14 it was only relevant to demonstrate that Swetrade Investments Limited was the registered owner of the land. 6.10 He argued that the respondent's certificate of title was issued in error or by mistake as the land was h eld on title by Swetrade Investments Limited. He maintained that if we uphold his argument, it will cause the appellant and the respondent to go to the office of the commissioner of lands to have the records rectified. 6 . 11 At the hearing, Ms. Kalima, who appeared for the respondent wholly relied on the respondent's heads of argument in which she argued that there is no case law or statutory provision which has been cited by the appellant in support of any ground of appeal. Therefore, the appeal must fail of its own inanition in accordance with the Supreme Court decisions in the cases of Khalid Mohamed v The Attorney General1 and U-Rest Foams Limited v Puma Botswana (PTY) Limited and another2 . Accordingly, since the appeal is devoid of any legal argument, it should be treated as abandoned and b e dismissed with costs to the respondent. 6.12 Learned counsel further submitted that the appeal is hinged on an entity known as Swetrade Investments Limited which is not a party to the proceedings. The issue is about the appellant's JlS encroachment and trespass on the respondent's property, which issues are separate from issues arising regarding Swetrade Investments Limited. 6.13 Regarding ground 1 (b) to ( e), it was argued based on section 54 of the Lands and Deeds Registry Act and the case of Anti-Corruption Commission V Barnett Development Corporation Limited3 that the fact that there was no challenge based on fraud or mistake against the respondent's certificate of title , is conclusive evidence of the respondent's ownership of the land in the extent stated in the title. Additionally, that there was no evidence adduced by the appellant to the effect that the respondent's property was wrongly acquired. 6.14 As for grounds l(f) and (g) it was argued that the appellant's submission that no recourse can b e had to the Survey Act because the commissioner of lands decides who should get land, is highly flawed . That the commissioner of lands does not work in isolation and performs his duties in conjunction with various players and in conformity with Acts of Parliament, such as the Lands Act and Lands and Deeds Registry Act. Section 2 of the Lands Act defines a certificate of title as meaning a certificate of title to land issued in accordance with the Lands and Deeds J16 Registry Act. And, every certificate of title has a diagram specifying the extent of the land. 6.15 Furthermore, that section 12 of the Lands and Deeds Registry Act provides that: "12(1) in this section- "diagram" means a diagram of a piece of land as defined by the land survey Act, which has been approved by the Surveyor-General: ''plan" means a plan of a . piece of land which has been approved by the Surveyor-General as sufficiently detailed, where the Surveyor-General is satisfied that an actual survey or the approval of a diagram is, for the time being impractical; "description" means a sketch plan of the land, showing with reasonable accuracy the position of the boundaries of the land in relation to the position of adjoining land, approved by the Surveyor-General for the purposes of this definition but not as a plan (2) Subject to this section, any document relating to land which is lodged for registration shall describe the land by reference to a diagram, plan or description of land, quoting the year and Surveyor General's number of the plan, diagram or description. (3) the Diagram, plan or description shall be annexed to the document unless it, or a document with it annexed, has already been registered in relation to the land and the document lodged refers to the document already registered. J17 6.16 It is argued that evidently the Survey Act comes into play in the administration of land. Section 4 of the Land Survey Act outlines the duties of the Surveyor General which include but are not limited to the supervision and control of the survey and charting of Land. The Lands Act, Lands and Deeds Registry Act and the Survey Act do not disclose any provision indicating that the commissioner of lands can authorize a survey. 6.17 Therefore the lower court did not misdirect itself by having recourse to the Survey Act. 6 .18 Regarding ground 1 (g) and (h) it was the respondent's submission that the appellant is misguided in seeking to have this Court consider the interests of a non-party. Furthermore, that the respondent cannot rightly be said to be a trespasser on property he holds valid title to. Reliance was placed on the text of Winfield and Jolowicz on Tort and the case of Jones v Chapman4 which held that: "If there are, two persons in afield each asserting that the field is his, and each doing some act, in assertion of the right of possession, and if the question is, which of these two is in actual possession, I answer the person who has the title is in actual possession and the other is a trespasser. " J18 6.19 According to counsel since the respondent has title to the land unlike the appellant, and the surveys having proved that the appellant encroached on the respondent's land, the trial Judge was on firm ground when she found that the appellant was a trespasser. 6.20 It was argued in relation to ground 1 (i) that the claim that the appellant has helped develop the law is without merit because the issues herein are not novel and do not raise issues of public policy. Thus, the court below properly awarded costs and exercised her discretion to do so judiciously. 7.0 Issue on appeal 7 . 1 After considering the submissions and the Judgment appealed against, we are of the considered view that the appeal raises the following issue: 1. Whether the respondent is a bonafide purchaser for value in light of the evidence that Swetrade Investments Limited owns the land where both the appellant's and the respondent's plots are. Before we delve into the issue, we must comment on the manner Mr. Kachamba numbered his grounds of appeal. In the memorandum there is only one ground with sub-grounds numbered (a) to (i). Then in his heads of argument, counsel J19 changed the numbers to eight grounds without leave of the Court. The Rules of the Court are clear and concise on how the grounds should be numbered and drafted. We will not penalise counsel this time but warn him to familiarise himself with the Rules of the Court as he risks having his cases dismissed on this account. We will therefore consider the grounds as they appear in the memorandum of appeal. 7 .2 We note that the respondent commenced this action as a result of a dispute over boundaries between himself and the appellant. In resolving the dispute, the trial Judge declared the respondent to be the bonafide purchaser of Lot 10975, despite the evidence adduced by the appellant showing the land in question was part of the land held on title by Swetrade Investments Limited. 7 .3 The question that begs an answer therefore, is, whether the trial Judge correctly declared the respondent as a bonafide purchaser. According to Black's Law Dictionary, a bonafide purchaser for value without notice, refers to an innocent party who purchases property without notice of any other party's claim to the title of that property. The respondent testified that he bought the piece of land from a Mr. Samuel Chiwambo. At page 210 lines 5-10 of the record of appeal he stated that the J20 transaction to acquire the property started in February, 2006. The parties executed a contract of sale and in December, 2007, the title deed to the plot was changed from the seller's names into his. It is noteworthy that title deed for the seller Samuel Chiwambo is dated 13th October, 2003 at page 77 of the record of appeal. 7.4 It is unclear how Samuel Chiwambo acquired this land. At page 101 is a list of names of people who were allocated plots by Chibombo District Council and Lot 10975/M was allocated to one Smart I. Yanika while Bernard Muntanga was allocated Lot 10976/M. I note that the document is undated. However, at page 103 is a document dated 4 th January, 2006 which according to the defendant's bundle of documents index, are schedules and sketch map for Kabangwe Small Holdings, it shows that Plot 10975/M belonged to Samuel Chiwambo. Of interest is that at page 104 is a lands register dated 8 th January, 2003. It states on entry Number 2 that the title holder for F /7048 is Swetrade Investments Limited and at entry number 3 that Swetrade Investments Limited applied for a duplicate certificate after losing the original. J21 7 .5 We opine that had the respondent been diligent in conducting searches on how Mr. Chiwam bo acquired the land such a s requesting for letters from the council, Ministry of Lands , approvals from the chief etc, he would have discovered that the plot is part of the land owned by Swetrade Investments Limited. It is not enough that a contract of sale was executed and certificate of title issued. 7 .6 Furthermore , there was litigation in the Lands Tribunal between the said Swetrade Investments Limited, Chibombo Council and others. Swetrade Investments Limited alleged that Chibombo Council had illegally allocated part of its land Farm No.7048 to others. Judgment was entered in favour of Swetrade Investments Limited. The Lands Tribunal by Judgment dated 21 st December, 2001 found that Swetrade Investments Limited was entitled to the posse ssion and occupation of F /7048 , as it complied with all procedures and the commissioner of lands offered it the land in issue. 7.7 There was no appeal to this Judgment, by Chibombo Council or any of the other r espondents. And, as aforestated, it is unclear how Samuel Chiwambo who sold part of the land to the respondent Mr. Chime acquired it. J22 7.8 We are of the considered view that in light of the evidence before it, the trial Judge erred when it found that the respondent was a bona fide purchaser for value. We noted also the correspondence from the commissioner of lands to the respondent and others informing them that the land in question was held on title to Swetrade Investments Limited and it was wrongly subdivided by Chibombo Council and offered to unsuspecting third parties. Additionally, that these pieces of land would be repossessed, titles cancelled and alternative pieces would be offered by commissioner of lands working with the Chibombo District Council. This letter is in line with the testimonies of PW3, DW2 and DW 4, who all confirmed that Swetrade Investments Limited owned the land part of which was sold to the parties herein. 7. 9 We note though, that this letter from the commissioner of lands is dated 7 th April, 2015 (page 122 of the record of appeal) while the case between the appellant and the respondent was already in court. Of paramount importance is the Lands Tribunal Judgment of 21 st December, 2001. This Judgment was not appealed against. Therefore, at the time the respondent was acquiring part of Swetrade Investments Limited land in 2007, J23 ' I I . . the same belonged to Swetrade Investments Limited as adjudged and was registered as such. The presumption alluded to by the trial Judge does not arise. Chibombo District Council was wrong to subdivide the land and offer to others who later sold to third parties like the respondent. 7 . 10 We also considered the provision of section 33 of the Lands and Deeds Registry Act which the trial Judge used to declare the respondent a bona fide purchaser for value. Section 33 is couched thus: "A Certificate of Title shall be conclusive as from the date of its issue and upon and after the issue thereof, notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the President or otherwise, which but for parts 111 to VII might be held to be paramount or to have priority; the Registered Proprietor of the land comprised in such Certificate shall, except in case of fraud, hold the same subject only to such encumbrances, liens, estates or interests as may be shown by such Certificate of Title and any encumbrances liens, estates or interests created after the issue of such Certificate as may be notified on the folium of the Register relating to such land but absolutely free from all other encumbrances, liens, estates or interests whatsoever: (a) Except the estate or interest of a proprietor claiming the same land under a current prior Certificate of Title issued under the provisions of Parts 111 to VII; and J24 .. • 1 • (b) Except so far as regards the omission or misdescription of any right of way or other easement created in or existing upon any land; and (c) Except so far as regards any portion of land that may be erroneously included in the Certificate of Title, evidencing the title of such registered proprietor by wrong description of parcels or of boundaries. " Clearly, section 33 has exceptions to it such as wh ere there is a current prior certificate of title. In casu, there was a current prior certificate of title for Swetrade Investments Limited for part of the land owned by the respondent. Furthermore, the anomalies highlighted that the certificate of title did not indicate or contain co-ordinates in the appropriate column nor a parent diagram number at the bottom of it raised questions as to its validity. Thus, based on the evidence before h er, we are of th e considered view that the trial Judge erred in law and fact when she found that the respond ent is a bona fide purchaser for value without n otice. 7.11 Having found that the respondent is not a bona fide purchaser in light of the evidence that Swetrade Investments Limited owned the land, we find merit in ground l(b), (c) and (d). 7 . 12 We would readily dismiss ground 1 (a) for lack of merit. There was no contradiction in the holding that both parties owned J25 ' I • pieces of land and that the respondent had a certificate of title . It was, an undeniable fact, that the respondent had a certificate of title which was issued erroneously as the land was owned by Swetrade Investments Limited. The appellant does not possess a certificate of title unlike the respondent, which certificate of title is subject to cancellation per letter of commissioner of lands and as testified by DW2 and DW4. We agree with Mr. Kachamba's arguments that there is need to have the register rectified. 7.13 Issues of trespass and the Survey Act raised in ground l(e), (f) (g) and (h) are rendered otiose by the finding that the respondent is not a bona fide purchaser. 7 . 14 Ground 1 (i) on costs is misconceived and dismissed. It is trite that costs follow the event. In the court below, the respondent was successful and thus entitled to costs, the trial Judge did not misdirect herself in awarding costs as she found in his favour. J26 7. 15 All in all, the a p peal has s ubstantially s u cceeded and is allowed. to bear own costs in t h is Court J. CHASHI COURT OF APPEAL JUDGE ~ J. Z. MULOOTI COURT OF APPEAL JUDGE F . M. LENGALEN A COURT OF APPEAL JUDGE J27