Alfred Lwizi Sekute & 1056 Ors v Kazungula District Council (Appeal No 05 2021; CAZ/08/412/2021; SP008/2023) [2023] ZMCA 372 (16 June 2023)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) SP008/2023 Appeal No 05 2021 CAZ/08/412/2021 BETWEEN: For the Appellant: Mr. M. Mutemwa of Messrs Mutemwa Chambers and For the Respondent: Ms. N. Chishimba of Messrs Mak Partners Mr. L. Yeta of Messrs Central Chambers RULING Sharpe-Phiri, JA, delivered the Ruling of the Court Legislation referred to: 1. The Court of Appeal Act, No. 7 of 2016 2. The Court of Appeal Rules, SI No. 65 of2016 3. The Rules of the Supreme Court of England (White Book), 1999 Edition Cases referred to: 1. Zambia National Commercial Bank PLC and Ernestina Saka/a & Others SCZ/08/10/2021 2. R [A Child-[2019] EWCA Civ 895 3. Bidvest Food Zambia Limited and Four Others v CAA Import and Export Limited Appeal No. 56/2017/2020 4. Citibank Zambia Limited and Suhayl Dudhia SCZ/08/2022 5. Sailas Ngowani and Others v Flamingo Farm Limited: Appeal No. 90/2016 - SCZ/08/214/2015 6. Kalelewa Samuel Kongwa v Meamui Gerogina Kongwa SCZ 8/05/2019 7. K. V Wheels and Constructions Limited v investrust Bank Pie, SCZ 8/29/2021 R1 1.0 BACKGROUND 1.1 This is a dispute involving customary land held under the Chiefdom of Chief Sekute of the Toka Leya people in the Kazungula District in the Southern Province of Zambia. The assertion of the Appellants is that the Respondent was offered land to develop a district, but without the necessary consents, allocated plots to various unknown persons, forcibly evicting and displacing the indigenous people of the customary land. Unable to resolve the impasse, the Appellants (as Plaintiffs therein) brought an action in the High Court of Zambia against the Respondent seeking the following reliefs: ( a) A Declaration or Order that the land upon which the affected villages including Mwiya, Kalundu, Kaza/a, Tu/ye Tonje, and Katoya are situate is customary land and is not part of the land which was given to the Kazungula District Council for development purposes; (b)A Declaration or Order that the plaintiff's are the lawful owners of the traditional land upon which the villages are situate and have been in existence from time immemorial; (c) A Declaration that the purported allocation of plots on the said customary land by the Defendants to persons unknown is null and void and of no effect; ( d) An Order of injunction restraining the Defendant or any of its servants or agents howsoever from evicting or attempting to evict the plaintiffs from their customary land or interfering with the quiet enjoyment of the land until final determination of the matter by the Court; (e) Further or other relief; and (/) Costs. R2 1.2 The High Court Judge found that the witnesses that testified before her were aware of the meeting held between the villagers, Respondent, Government officials and Senior Chief Alfred Sekute and the Deputy Chief and were also aware that the land in the northern part ofNakatindi Road in Livingstone was given to the Respondent in 1994. 1.3 The Judge determined that the Government officials had had numerous engagements and consultations with the Chiefs, Headmen, Leaders, and the community regarding the concerns of the stakeholders, which were adequately addressed, and that no person was removed from the land. The Judge concluded that the relevant laws had been complied with and that there had been no infringement of any person's rights by the Respondent. 1.4 Being dissatisfied with the decision of the High Court, the Appellants appealed to this Court on two grounds namely: 1. The Court below misdirected itself on points of fact and law by holding that the Appellants were consulted when there was no evidence that they consented to have their land taken away by the Respondent; and 2. The lower Court misdirected itself in law and fact by misconstruing consultation of the Appellants as to mean the same thing as obtaining their consent. 1.5 After evaluating the evidence and sequence of events in relation to the grounds of appeal, we found that the High Court Judge's findings were not implausible. R3 1.6 We further found that he Appellants had failed to prove on a balance of probabilities that they did not consent to the developments in the newly created district. Further, that although there were challenges arriving at consensus that the conversion from customary into leasehold tenure would not leave the Appellants bereft of benefit as they were accommodated within the same land. 2.0 MOTION BEFORE US 2.1 Being dissatisfied with our judgment of 15th February 2023, the Appellants seek leave to appeal to the Supreme Court on the following grounds: 1. The Court of Appeal misdirected itself in law and fact when it held at page J26 that the Appellants did not prove on a balance of probabilities that they did not consent to the developments when legally the burden of proof had shifted to the Respondent to show · that they did in fact obtain consent from each of the affected parties. 2. The Court of Appeal having reviewed the evidence at page JJ9 and J24 to the effect that the Chief had to consult the affected people, that the Respondent conceded to not having any document to show that the Appellants gave consent and that in fact consultations were still ongoing, misdirected itself in law and in fact when it held at page J26 that the Appellants did not prove on a balance of probabilities that they did not consent to the developments. R4 3. The Court of Appeal misdirected itself in law and fact when it held at page J26 that the conversion would not leave the Appellants bereft of benefit when the evidence on record at page J20 confirmed that the Respondent in fact has not compensated the Appellants for previously destroyed properties. 4. The Court of Appeal misapprehended the facts of the case when it stated at J26 that the Appellants were accommodated within the same land to pave way for national development when the evidence on record expressly showed that the Appellants had petitioned on the premises that the Respondent were granted land/or development on the northern part of the territory and not the southern side belonging to the Appellants. 2.2 The Motion for leave to appeal to the Supreme Court against our judgment was brought on 1st March 2023. It is made pursuant to the provisions of Section 13 of the Court of Appeal Act, (CAA) 1 and Order XI of the Court of Appeal Rules, (CAR).2 2.3 The application was supported by an affidavit of Sitali Clement Mayumbelo, one of the Appellants, who deposed that the Appellants are desirous of appealing to the Supreme Court against our judgment of I 5th February 2023. That their appeal has merit and high prospects of success and contains points of law of public imp01tance and compelling reasons to be heard. He further states that it is a matter of public interest that the Supreme Court be called upon to determine which entity bears the burden of proof when dealing with customary land as well as the rights of interested parties when consent to obtain their land has not been sought. RS 2.4 The Appellants' application was fortified by their heads of argument of 21 st April 2023, in which Counsel submitted that the appeal before this Court is neither frivolous nor vexatious but has high prospects of success in accordance with Section 13(3) of Court of Appeal Act. 2.5 Counsel relied on the cases of Zambia National Commercial Bank PLC and Ernestina Sakala & Others,1 R [A Child-[2019] EWCA Civ 8952, Bidvest Food Zambia Limited and Four Others v CAA Import and Export Limited3 , Citibank Zambia Limited and Suhayl Dudhia4 and Sailas Ngowani and Others v Flamingo Farm Limited5 to support the application. His further contention was that the matter is of public importance as it involves 1056 individuals. That the appeal intends to deal with failure to follow procedure in alienation of customary land which by judicial notice is the tenure ofland covering most of the surface in Zambia. He also argued that a decision touching on alienation of land from customary land to leasehold was a legal issue whose final determination would benefit the country at large as there are countless individuals dealing with disputes touching on procedural impropriety. 2.6 In the Heads of Argument opposing the motion dated 2ist April 2023, the contention of the Respondent is that the proposed grounds of appeal have no reasonable prospects of success. Further, that the intended Appellants have not demonstrated that there was a serious question of law or that the appeal is of public importance or raises an issue of public interest to be entertained by the Supreme Court. That · the points of law of public importance touching on the development of banking law and its practices were alien to these proceedings and does not affect this Court's judgment. R6 2.7 The further assertion is that there are no other compelling reasons raised in the proposed grounds of appeal for this Court to grant leave to appeal to the Supreme Court. The Supreme Court has in a plethora of cases determined issues relating to customary land, interpretation of statutes on who bears the burden of proof, when the burden shifts between parties and the procedure on alienation of land. 2.8 The parties were heard on 1st June 2023. The Appellants and Respondent were represented by Counsel from Messrs Central Chambers and Messrs Mak Partners as earlier indicated. We are indebted to Counsel for their Heads of Argument, which we have carefully considered. 2.9 In support of the application for leave to appeal, Mr. Y eta relied on the Notice of Motion of 1st March 2023. Counsel sought to demonstrate that the application for leave to appeal to the Supreme Court has met the threshold under Section 13(3) of the CAA particularly that the intended appeal raises issues of public importance and the appeal having a high likelihood of success. Counsel asserted that the intended appeal is of public nature as it involves a public authority and over a thousand people under the Kazungula District. Counsel submitted further that while the law was settled on the issue of consent being obtained before conversion of customary land, the law was not settled on who should bear the burden of proof. 2.10 In opposing the application, Ms. Chishimba relied on the arguments of 21 st April 2023 and briefly augmented her arguments but submitting that even though the dispute relates to land, involves numerous parties and a public authority, this did not make it a matter of public importance. R7 2.11 Counsel for the Respondent argued further that the appeal had no real prospect of success and that the motion did not meet the threshold under Section 13(3) of the CAA. She urged the Court to dismiss the motion. 3.0 ANALYSIS AND DECISION 3 .1 This Motion is for leave to appeal to the Supreme Court against our judgment. To grant leave to appeal, we must be satisfied that the intended appeal meets one or more of the requirements under Section 13 (3) of the Court of Appeal Act which provide as follows: '(3) The Court may grant leave to appeal where it considers that: ( a) (b) (c) ( d) the appeal raises a point of law of public importance; it is desirable and in the public interest that an appeal by the person convicted should he determined by the Supreme Court; the appeal would have a reasonable prospect of success, or there is some other compelling reason for the appeal to be heard. 3.2 The foregoing provision is self-explanatory. For this Court to grant leave to appeal, it must be satisfied that either the intended appeal raises a point of law of public importance; or it has reasonable prospects of success; or it is in the public interest or that there are compelling reasons for the appeal to be heard. The Appellants assert that the appeal has good prospects of success, it contains points of law of public importance, and it raises compelling reasons to be heard. R8 3.3 In considering the contention of the Appellant, the first question is whether the issues put forward in the intended appeal raise points of law of public importance. We have resorted to various decided cases for guidance on what constitutes points of law of public importance. In the Bidvest Food Zambia Limited and Four Others v CAA Import and Export Limited case, the Supreme Court states as follows: 'As we have pointed out elsewhere in this judgment, categories of cases of public importance are clearly never closed. Points of law of public importance can, in our view, be harnessed more easily in appeals where it demonstrably for the public or general good of the policy for the Supreme Court as the final Court to review the legality of extraordinary questions and new legal provisions informing actions by public authorities or where a significant part of the public stands to be informed.' 3 .4 Similarly, the Supreme Court approved the observations of a single Judge in the case of Kalelewa Samuel Kongwa v Meamui Gerogina Kongwa6 who considered the question of what amounts to points of law of public importance as follows: 'To revert to the issue of a point of law of public importance as envisioned in Section 13(3)(a), I apprehend that/or an appeal to satisfy this requirement, it must raise a legal question with a public or general character rather than one that merely affects the private rights or interests of the parties to the dispute ... R9 An intended Appellant ought to demonstrate that the point of law raised is a substantial one, the determination of which will have a significant bearing on the public interest.' 3.5 The foregoing authorities are instructive. For an appeal to be considered as one raising a point of law of public importance, it must advance a legal question of public interest. The Supreme Court further observed in the Bidvest case that: 'Many cases of a purely private nature including many in contract and tort are unlikely to raise a point of law of public interest since they quite often are designed to resolving the dispute to the satisfaction only of one or the limited parties to a particular dispute. This, however, is not in any way to suggest that such , dispute would never transcend or snowball into the public arena or arouse or engage broader public interest or concern. To be certain, where there is a discernible public interest or public policy concern in the anticipate elucidation by the Supreme Court of a point of/aw in what is otherwise litigation between private parties, there is a definite possibility that such point of law would be one of public importance notwithstanding its private genesis.' 3.6 Similarly, Malila, CJ stated in the case of K. V Wheels and Construction Limited v Investrust Bank Plc7 as follows: 'The authorities on the point agree that for an appeal to be regarded as one raising a point of law of public importance it need not necessarily be one that raises a difficult question of/aw; it must RlO raise important questions of law, that is to say, a question that presents uncertainty on the state of the law requiring authoritative clarification. Such questions must additionally affect a wider audience of the public than the immediate litigants in the appeal.' 3. 7 In the present case, the position of the Appellants on this topic is that the dispute relating to the alienation of land from customary land to leasehold, involving 1056 individuals was a legal issue which would affect and benefit the country at large and therefore does raise a point of law of public importance. As rightly argued by the Respondent, the procedures of alienation of customary land have been adequately addressed by the Supreme Court in a plethora of authorities. The fact that this land dispute relates to a public institution, asserts procedural impropriety and affects many individuals does not make the matter of public interest or public importance. 3.8 The appeal before us is based on the findings of the lower Court regarding the Appellants and the Respondent and particularly in relation to the conversion of customary land to leasehold in the Kazungula District. The issues in the grounds of appeal do not reveal any ambiguities in the law. The questions relate specifically to this dispute and there is nothing in the resolution thereof that becomes of public importance. We do not find anything that transcends the issues herein into the public realm or that is new or novel for the Supreme Court to address on this issue of conversion of customary land to leasehold. Given the foregoing, we do not consider that any of the grounds of appeal raise any points of law of public importance. Rll 3 .9 Turning to the grounds of appeal having a good chance of success, the first two grounds of appeal relate to whether there had been consultations with the affected people and who has the legal burden of proving that the Appellants had consented to the development. Counsel argued that legally the burden of proof shifted to the Respondent. The Respondent argued that it had discharged its evidential burden of proof in the trial Court by showing that the Council had ascertained the communal interests and obtained consent, through the Chief. Further, in any event, the issue of whether the burden of proof shifted between the parties and how the parties prove their cases are well settled principles of law and not novel for determination by the Supreme Court. The issue of community consultation and engagement over the developments in the area in question was addressed in this Court and by the Court below. Having considered the evidence on record, we agree with the trial Court that people's rights were not infringed in any way. 3 .10 The other two grounds of appeal relate to whether, based on the evidence on record, there was a misdirection or misapprehension of the facts of the case by this Court in holding that the conversion would not leave the Appellants bereft of benefit as they were accommodated within the same land to pave the way for national development. Having closely reviewed the grounds of appeal, we are not satisfied that they present any reasonable prospects of success. 3 .11 Lastly, there was an assertion by the Appellants that the intended appeal has compelling reasons to be heard. The Appellants have failed to establish or reveal any compelling reasons whatsoever for the appeal to be heard. This submission was, in our view, misconceived. R12 4.0 Conclusion 4.1 We find that the application for leave to appeal to the Supreme Court is devoid of merit and we accordingly dismiss it with costs to the Respondent. The costs to be agreed between the parties and in default to be taxed. M. M. Kondolo, SC COURT OF APPEAL JUDGE F. M. Chishimba COURT OF APPEAL JUDGE ~~ - :ffharpe-Phiri r COURT OF APPEAL JUDGE R13