Kalvic Bakery Limited v The Attorney General and Anor (APPEAL NO. 78A OF 2017) [2018] ZMCA 416 (16 May 2018)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO. 78A OF 2017 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: APPELLANT 1st RESPONDENT 2nd RESPONDENT CORAM: Chashi, Siavwapa and Ngulube, JJA ON: 21 st February 2018 and 16th May 2018 • For the Appellant: M. J. Katolo, Messrs Milner and Paul Legal Practitioners .-/ For the 1st Respondent: D. M. Chiles he, Senior State Advocate For the 2 nd Respondent: C. L. Sianodo, Messrs Malambo and Company JUDGMENT CHASHI, JA delivered the Judgment of the Court. Cases referred to: 1. The Attorney General, Ministry of Works and Supply and Rose Makano v Joseph Emmanuel Frazer (2001) ZR, 87 2. Christopher Lubasi Mundia v Sentor Motors Limited ( 1982) ZR, 66 3. Oduyeni and Others v Atlantic Investments Limited - SCZ Appeal No. 130 of 2000 4. Polythene Products Zambia Limited v Cyclone Hardware and Construction Limited and Attorney General (2012) Vol 3, ZR 396 5. Boniface Joseph Sakala v Zambia Telecommunication Company Limited - SCZ, Selected Judgment No. 46 of 2016 Legislation referred to: 1. The Lands Act, Chapter 184 of the Laws of Zambia 2. The Supreme Court Practice (white Book) 1999 -J 2 3. The ,Lands and Deeds Registry Act, C'hapter 1 ss· of th.e Laws of Zam.bi.a 4. Thie Lands Tribuna.l Ac·t,, No,. 3 .9 of 20'10 s. The, Interpretation and Gene~al Provisio.ns Act, Chapter 2 of the Laws of . Zambia 6. The ,C,onst·i.tuti,on of . Zambia (Amendment) Act, . No. of 2 ,0'16 This. is, an ap,peal a ,gainst th,e Judgment ,of the Hi,gh Co,urt, ,delivere,d on 21 st Ap,ril, 2017 in which the court dismissed the action for lack of juris,diction. The sequence of ,events le·.ading to the ,cause of action i·n the court b,elow wer,e that, the App1ellant w.as th,e beneficial. o·wne.r of Stand N·o. LUS/718, (the P'.r,op,erty) ,and held a ,cer,tificate ,0 1f titl,e. In Janu.ary 1998, the ,commis,s,ion,er of Lands (the Co,mmissioner) re· entered the Property and issued a new certificate of title t 10 the 2 nd Res,p,o,ndent. The ,action by ·the Com:missioner p,rompted the Appellant to comm,enc,e legal proc·eedings, in the co,urt b,el,ow against the 1st and 2:nd Respo:ndents by way of writ of summons, see·king th,e following reli1efs: (1) A d,e·claration that the re-entry was illegal and therefore null an,d void. (2) An ,Qr,d,er that th,e 1st Res.pond,ent. restor,es the certific.ate o·f titl,e to the Ap,p,ellant or in the alt,ernative, the App,ellant be re-registered as, beneficial •o·wner and be issu,ed with a certificat,e •Of title. Ac.1cording to the Appellant, ,at the time ·Of r,e-entry and allo,cat:ing of the Property to the 2 nd R,es:p,on,dent, there was no proper n ,o,tice that was given to th,e Appe,llan.t, who had de·veloped tl1e, Prop,erty to the v,alue of K4·4,0100.00 (r,eb,ase·d) 1 • The Ap,pellant further all,ege,d that n ,o lawful gr,ounds existed for the r ·-~-en.t-ry--_-- an.--.·d a l· e __ locat1;·ng--_ o,fth,e• Pro -- e• rty--- to· t.h-e-- 2 nd R1 _ p _ _ _ _ _ _ _ __ _ _ _ ·_.e-- p-· -_,-- d_,, __ 1-- t .. _ _ s . on en . • -J 3 - In its defence, the 1st Respo,nd,ent averred t.hat the Property was re e·ntered pursuant ·to -Section 1.3. (2)1 of The Land.s Act1 after the Appe:llant failed to s,ho-w c.aus.e why it should n ,ot be re-entere·d. as ·the Property was undeveloped, ab,ando,ned and was b,eing used as a dumping site for s,crap metal b·y the 2 nd Respondent who w,ere the App,ellant's n ,e.ighbors . . According to the 1st R,esp1ond 1ent,, the Appellant was served. with the notice to re-ent:er by re,g,istered mail. In Apri.l 20,14 after th•e Appe·llant had close,d its c.ase, th•e 2 nd Respo,ndent''s Advo,cates. raised .a p 1:relimin,ary issue p,ursu.ant to O·rde·r 14 A and Ord,er 3,3 of Th.e· . Rules· of the Sup.~eme ,court (RSCJ2 •qu,estioning whether th,e :Hig,h Court h ,ad juris,diction to h ,ear ,a ch,allenge of re entry process by the C-ommis,sioner in v1,ew of the p 1rovisions, und,e.r Secti.on 13 1(3) and 15 of The Lands Act1 . In oppos:ing the pre,Iiminary iss,ue, the· Appellant argued th,at,. prior to the ,ena,ctm.ent of The Lands Tribunal A,ct4, ·the Lands Tribunal had no, juris,diction in matters relating to land which was a s,ubje·,ct ,o,f· a cert1.ficate ,of ·title and neither did th.ey have jurisdictio,n to Order can,c,ell.at,io·n ,of 1c,ertificate· of title as, the po·wers to do so lay· with the High Court. The ,court b,elow decided. to, pro,ce,ed. wi.th. th,e: defen,ce and invited the parties to addr,es.s the· c 1ourt on th,e issue in their respective submiss.i,ons. In rendering its Ju .. dgment., the co,urt belo,w·, after considering the preliminary issue, opine,d ·that, an a 1ction to giv,e rise to cancellation of a certificate ,o,f title can only .ar·ise in circumstances, p,rescribed under S1ection 3 .. 3 and 3,4 of The Lands a .n.d Deeds Registry A,c,t-3, one of whi-ch is wh,ere title is ,obtained by fraud. The learned Judg,e hel•d tha·t th,e • -J 4 - Appellant's grievance sh 10 1uld have be:en a 1ddr 1essed ·by· way of ,an ,app1eal t•o the Lands Tribunal as provid 1ed for under Section 13 (3•)· ,of The La.nds A.ct1 • Dissatisfie,d with the Judgment, th,e Appellant has appealed to this Court advancing four ground.s ,o,f appeal couche,d as follows.:: (1), Th lear.ned trial Judge erred in la\v and fact when it dismiss.ed the a •ctio,n on th,e pro,visio1ns of· Section 13 of the Lands A•ct without due regar·d to th - fact that in 1998 when this acti1on w.as commenced, the L1ands Tribunal had no jurisdiction to, Order· can.cellation o,f a title deed, which was 0 1ne of the r•eliefs. claimed in this .actio,n. (2) The lear·ned trial Judge erred in law an.d fact when he held that the Lands Tribunal has. powe,r· to Order the register· t:o b,e· rectifie,d wh 1en the claim bef or,e court w,ere no,t for r·ectificatio•n ·Of th,e r gister b,ut for rest,orat1on of the cer·tificate of title (3) The court erre·d in law and fa.ct when it failed to appr1e·ciate the fact that ·the st.at,e· of th•e law at th,e time the act.ion was c,ommenc,ed in 1·919·8 was that only th _ High Court ,o,f Zambia was the proper forum with jurisdiction to 1 order can,cellation of title deeds. (4) Th 1e co,ur,t below fell into gross error when it upheld the preliminary issue· with,out a ,djudicating on the whole claim on the merits without. taking into· effect th 1e fact that the jurisdictio,n of the . Lands Tribunal ·was o,nly enhanced by the Lan,ds. Tribunal Amendment Act No. 39 of 201 1·0. n ,arguin.g th 1e first ground ,of ,appe,al,. Mr. Katolo, Counsel fo 1r the Appellant,. dr·ew our .attention to pag1e 17 ,of the re·c,ord of appeal (the r,ecord) and s,ubmit·te 1d th.at the a,ction herein was. comm 1enc.e,d on 21 t July·, 1998 by way 0 1f writ of summons, seeking the reliefs. •Contain.ied there·i.n. Counsel refe·rred us to, page 16 of the rec,ord, line 2-5 whe:r·e th·e !,earned Judge had this to, say.: • -J 5 - '(The p ,leadings h:erein c·l,early s .how that t.he plaintiff is not seeking to h,ave the 2 nd defe·ndant's certificate· of title can,celled under any of the, circumstances prescrib,e,d int.he two s .ectio,ns. Inst,e·ad it is clear that the plaintiff is challenging t.h,e 2 nd d ,efendant's title through a challenge of the re-entry of the ,Commissi'oner .ofLand·s. '' Co·uns,el sub,mitted that from the aforesta·ted, it was ,evident that the Appellant was ,challenging ·the .2 nd Resp·onde·nt's title which was, o,b,tained following re:-entry. If the A.p·pellant's chal,lenge· was successful it would have resulted in the· cancellat10,n o,f the 2 nd Res:pondents. title. The case ,of The At.t ,orney Gen,e.ral., M.inist.ry of Wo,rks and Supply and Rose M :akano, v Jo,seph Emm.an:uel Fr·a.s.e:r 1 was cited, which discuss,e,d th,e jurisdi:ction of the Land-s Trib1unal as, foll,ow.s: ·''(])' The Lands Tribunal has ·no _jurisdic·ti.o·n to Ord,e·r· cance·llation of certificate of ·title in land matt.ers. The jurisdi,ction to, Ord,e·r cance.llatio:n of title de,e,.ds lies w·it.hin the High Co,urt an.d not the Lan.ds Tribunal. (2) The p ,ower of the Lands Tribuna,l is· li'mited to, re·,c,omme.nding to the Commissioner of Lands as tow.hat to do with a ce·rtijicate· ,of' title in issue ,and not to Orde·r can,cellation. '' It was Couns.el's submiss.ion that in the· said. case,. t he Sup,rem,e C,ourt s.tat.ed very clearly in no unc,er·tain terms th.at t.he Lands. Tribunal. had no juris,dictio,n to Order cancellation of title deeds. ,co,unsel further submitted that, the Lands Tribunal was only ,clothed with p,ow,er to Order cancellatio,n of a title dee,d among O•th,er ·things ' -J 6- fol'l,owing the intro·du 1ction o,f The· Lands Tribuna.l A.c·t4 an·d ·The La.n,ds (Amen.dment} A.ct No. 41 of 2010. Our at·tention was drawn to, the· provisions of S.•ection ·14 (3) ,o,f The Interp:ret.ation and General Pro,·visions Act5 .an,d subm.itted that the case at hand should not. adversely be affected by th,e chang,e in law. According to, Couns,el, the matter was. prope·rly befor•e the Hi,gh. Co1urt .. As r,e,gards the sec,ond ground of appe,al, Coun.s ,el drew o•ur .attention to Section 13 (3) ,of The' Lands Act1 which stat,es as foll 1ows: ''A less,ee aggriev·,ed w ·ith the d'ecision ,of the Pres·ident to cause a re--entry t,01 b,e e·nte·red in the register ma_y within 30 .days appea,l to the Lands Tribunal for an ,Qrd 1er th,at th.e rie·gzster b·e rectifi,e.d. )) It was C,o,uns.el's contention th,at the issue of r•ect·if1cati,on o,f the register was never pleaded in the writ of summons and statement of claim. Th 1e case of Christopher· Lubasi Mundia v S,entor Motors Li·mit.e·d2 was. cite,d. on th.e funct.i,on O•f pl1eadings .and submitted that the court. below was precluded fr.om rais.in,g the issue on its •own motion .. Coun.sel beseeched us, to set aside· the· Ju 1dg,ment of the court below ,and Ord 1er a retrial ·before another Judge According to ,Counsel, the esse·nce· of seeking a retrial is to ensure that just,i,ce prevails fo,r b ,oth p.a·rties where the matt 1er is h 1eard and determined on th 1e merits in acc 1ordance wit,h the sp,irit in Articl,e 118, of The ,C,onstitution of Zambia6 as. th,e court rel·i,ed on pro·ced ural technicalities t,o di.s.miss the case. Th.e thir,d ,and fourth grounds ,of appeal. were not argue 1d, ,as in 1Couns 1el's view, 1·h 1e g,ro,unds were ,co·v·ered in. t,he argument in respect to, th.e first .and second grounds of ap,p·eal. • -J 7 - In response to the first ground of· appeal, Mr. Chileshe, Counsel for the 1 t Respondent, submitted that the le.arned trial Judge was on firm ground whe·n he dismissed the action p·ursuant to ·section 13 (3) of The Lands Act1 . That a perusal of the statement of claim shows ·that the ·claim was, for a declarati,o,n that the re-entry was ill,egal and null an·d ·void;. the claim. sho,ws that the App,ellant intended to challenge the steps t.aken by t.he Commissioner in the re-entry of the Property. The procedure to challenge the decision is specifically provid,ed for under Sectio,n 13 (3) of The Lands Act1 . In r·esponding to, the second ground of appeal, Counsel was 10f the view that the power to Order the register to be rectified, lies with the Lan,ds Tribu·nal. Co,unsel further submitted that. aft,er the Commissi,one:r decides to re enter a piece of land and the person from who·m such land is re entered d ,ecides to appeal, th.e cumulative effect o•f such a process may result in the rectificatio•n of the land register. Therefore, the· Appellant strictly sought to order the rectification of the land r·egiste·r, ·even though it di.d not specifically p·lead that, b ,ecause all the reliefs S 1ought had an ,effect of rectifying the regi.ster. Counsel equally did not argue the third and fourth grounds .as the same were C•overed in the arguments in response to the first and second grounds of .appeal. Co•unsel for· the 2 nd Respondent, Mr. Sianondo in responding to the first ground of ap 1peal submitted that a perusal of the reli,efs which were b,eing sought, in particular the first and se,cond, the s.econd r·elief is a conse 1quence of the first. It is only after the re-e.ntry has been declare·d illeg,al th.at oth,er activities as envisaged under the second r,elief can fo,.llow. Therefore, the Appellant was challenging the re- -J 8 - entry, which can only b,e done under the provisions o,f Section 13 (3) ,of The Lands Act1 . ·1t was Counsel's contention that th,e issue of canc,ellation o,f the certificate of title cannot arise b,efore attending to the challenge· of r,e entry. C,ouns,el referred us to the ,case of Attor,ney General, Ministry of Wor.ks a·nd s,upply and Ros,e M.akano v Joseph Emman,uel Fras,er 1 where the Supreme Court cited the case of o ,du.yeni. and Ano,ther v Atlantic Inves,tments Lim.ited3 where it was held that: ''The question of the Lands Tribunal's jurisdiction to cancel cerlific,ates of title for any reason ,has already been sett.led by this court in a number of cases emanat·ing fro,m the Lan,ds Tnbunal. One, of the recent cases is that of Oduyeni and Anoth.er v Atlantic Investments Limited. The appeal in that c,ase was against t,he decision of th,e Lands Tribunal o,rdering that a certificate of title be cancelled. We sai,d in that case: '(Our short answer to that, is that the Lands Tribunal has no jurisdiction to Orde·r cancellation of certificate of title in land matters. In terms of the Lands and Deeds Registry Act, Cap 185) the jurisdiction lfes with the High C,ou.rt and not with the Lands Tribunal. The Land·s Tribu.nal can only recommend cancellation. This is what in eff e,ct we said in Mwange,:la v Nsok.oshi ,and Ndola City Counci ,l. Alt.hough the Lands Tribu·nal was correct in doing substantial justic,e, th,eir power· is limite,d t,o recommending to the Commissione.r of Lands as to what to do with a certificate of title in issue and not to Order canc,ellation. That position has not changed. '' • -J 9· - Acco,rding to ·Couns,el,, it follows that the co,urt was right t·o discount ·the action on the point of law as the recommendation from the Lands Tribunal would have attended to the ·ce:rtificate of tit.1,e. In res·ponding to, the second gro,un,d of appeal,, Counsel argued that the Appellant o,mitt,ed the consideration of the settled position in the case of Polythene Products Zambia Limited v Cyclone Hardware a.nd Constructi.on Limit·ed and Attorney General4 which ex.plained the posit.ion that. the re-entry ,can only be chall.enged t.hrough the Lands Tribunal. The Supreme Court opined at page 404 as follows: ''We h,ave considered grou.nd two and the sub,missions by Co-unsel. New Plast Industries v· Commissioner qf . Lands, was decid'ed under Section 8'7 of the Lands and Deeds Registry A .ct, 185 of the Laws of Zambia. That Section provid,es that a person ,aggrieved by the decision of the R,egistrar of Lands and deeds, may appeal to the High Court {following the procedure in appeals from the High c ·o,urt). The aggrie.ved party in that c·ase commenced pro·ceedings by way of judicial review. In dis·missin,g the appe·al, this court held that the mode of commencement of an,y action zs provided by the relevan·t statute. Thus, wh,ere a st,atute p .rovides for the procedure of commencing an action, a p .arty has no option but to abid·e by th.at procedure. That the matter hav·ing been brought to the High Court by way of judicial review) when it should have b·.een commenced by way of an appeal, the court had no jurisdiction to make the relief sought. The court fallowed its earlier decision in Chikuta v Chipata Rural Council .. • • -J 10- In the instant case, Se,ction 13 (3) ,of the Lands A.ct specifically provides that a party aggrieved by: ''A certificate of re--entry ente,red ln the register may within thirty days app,eal to the Lands Tribunal for an Order that the register be re,ctified 1 ' Following ,our decisi-on i.n the two cases· referred to above, we hold that the 1st Defendant, being agg.rie·ved by the certificate of re-ent_y on Stand No. 12094,, Lusaka, had no option but to appeal to the, Lands Tribunal, in its c,halleng,e of the certificate of re-entry. The 1st Defendant did not do, s ,o. On the facts of this case, we hold that the learned trial Judge had no, jurisdiction to entertain the 1st Responde,nts counter claim on fraud and negligence in this ac,tion which was comm,enced by w ,ay of writ of summons.'' At page 405, the Supr,eme Court further reas,oned that: ''We have considered the submissi,on on groun,d three.. The shorl answer, as we said zn groun,d· two is that the learned trial Judge had no jurisdic·ti,on to, hear th,e 1st defendants challenge, of the re-entry process by th,e Commissione,r of Lands. Therefore, he should no,t hav 1e even ru.led on the impropriety or otherwise of the re-entry pro,cess. '' Couns,el furt.her submitt,ed that the law does not support the m .atter to be heard by the High C,ourt. The lack of jurisdiction by the Hig,h Court goes to the root of the matter and as such the Court should dis.miss the whole appeal. According to Counsel, it is clear from the statement of claim that one of the reliefs being sought is re-registration of th,e Appellant and that • • -J 11 - it be issued with a certificate of ti1tl.e .after the re-e.ntry has been annulled, which involves rect1fi,cation of the register. It was Counsels contention that the court below could not b·e faulted for holding that th·e Lan.ds Tribunal has power· to rectify t.he register, p·articularly that the Appellant is seeking its re-registration on th,e record. C,o,unsel further submitt.e,d that the breach by the Appellant was fatal and there subsists no rea.son to have the matter r·etried. I·n respon,ding to the third and fourth grounds of appeal, ·C,ounse·l cited the case o,f B.oniface Joseph Sakala v Zambia Telecommunications Company Limit.e.d5 and submitted that the procedure which was, ado,pted by the -court below,. to only write one Judgment o.n the preliminary issue was proper as the preliminary issue res,olv,ed all the • issues. ·Counsel urged us to dismiss the whole appeal as it is. devoid ,o·f any merit. We have considered th.e submissions by Counsel O•n behalf o,f their respective parties and the Judgment of the court belo•w. We shall .address all the four grounds of app,eal as they only rais,e one issue; that is whether th·e court below was correct in holding that the Appellant's grievance should have been addressed by way of an appeal to the Lands Tri·bunal as provided for under Se,ction 13(3) ,of The Lands Act1 . Our perusal of the endorsement on the ·statement of claim appe.aring at pa,ges 19-20,, of the record of appeal shows that what gave rise to the Appellant's cause of action was the Commissioner''s decision to re enter the Prop·e·rty. It is that decision which th,e Appell.ant was impugning in the court below. -J 12 - There·fore,, in our vi,ew, the le.arne,d trial Judge w,as on firm gr,ound when he opin,ed that the Appellant was n .ot. seekin,g t,o have the 2nd Appellant's title· cancelled but •challenging, the titl,e thr,ou,g,h a challenge of the re-,entry by the Commissi.oner. In li.g:ht ,of the Supreme Court deci.si,on in th.e Pol.ythene Produ.cts Zamb,ia . Limite,d4 case, we need not b 1el,abor the p,o,1nt as enunciate·,d there·in that a party aggrie·ved by th•e certificat.e of re-en.try· has .no ·option but t.o appeal ·to, the Lands Tribunal in accordance with Section 13 (3) of The .. La.nds A.ct 1 which has pow,er t,o give ,effect to .any challenge th,at might succeed. In the view we have taken, we are in agr,eement with the court below that it had no, jurisdiction. to d•eterm.ine the .action before it .and, in that resp,ect, co,uld not have .a,djudicated ,on the m ,erits of the case. W•e agree, with. Mr. Sian,ondo that the la·ck of jurisdiction by the C·0 1urt b·elow goes to, ·th,e root of the matter. It is in that respe,ct that the· App,ellants plea to have the matt.er sent back to, the High Court for retrial is misplaced. The App,ellant cann.ot find refug·e und,er the pro,vis,io,ns ·of Arti,cle 118 (2) :(e)1 of Th.e Constitution of Zam.bi,a 6 . Although the Arti,cle provid,es cate,g:orically th.at justic,e should be administered witho·'Ut undue reg:ard to proce,dural te,chnicalities, our interpretat:ion of the Article i.s that it is in the int,ere.st of· justi,ce that proce·,dural ·1apses sh,o.uld not be inv,oked to defeat applications •Or matters ·before· c,ourts of law unl,ess the lapse went to the jur.isdiction of the co,urt or is :likely to cause· substantial injustice or p,rejudi,c,e to the ,opposite p 1arty. In casu, the lapse we·nt to the jurisdi,ction of th,e c,ourt. -J 13 - In the view that we have taken, the court below cannot be faulted. The appe·al is be·reft of merit and is accordingly dismissed with ,costs to th.e Respondents. Same to be taxed in default o,f agreement. J. CHASHI ,COURT OF APPEAL JUDGE M. J. S,IAVWAPA P. C .. M. NGULUBE C·OURT OF APPEAL JUDGE C·OU. RT OF . APPEAL JUDGE