Beatrice Nalwiza and Anor v Isoka District Council and Ors (APPEAL NO. 158/2019) [2021] ZMCA 202 (28 July 2021)

. .. • ,J IN THE COURT OF APPEAL APPEAL NO. 158/2019 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: BEATRICE NALWIZA ALFRED SIMUKONDA AND ISOKA DISTRICT COUNCIL DANY AMOS SIMBULE (WARD COUNCILOR KASOKA WARD)CHINA JIANGX (CHINESE COMPANY) 1 ST APPELLANT 2ND APPELLANT 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM. : KONDOLO SC, MAKUNGU and MAJULA, JJA On 16th June, 2021 and 28t h July, 2021. For the Appellants. : Messrs Juen Mulenga & Company For the Respondents: No Appearance JUDGMENT KONDOLO SC, JA delivered th e Judgm e nt of th e Court CASES REFERRED TO : 1. Zambia Revenue Authority v. Jayesh Shah (2001) ZR 60 2. Leopold Walford (Zambia) Limited v . Unifrieght (1985) ZR 203 3 . The Republic of Botswana Ministry of Works Transport and Communication & Rinceau Design v. Mitre Limited SCZ Judgment No. 20 of 1995 4. Philip Mutantika and Another v. Kenneth Chipungu SCZ Judgment No. 13 of 2014. 5. Zimba v. Tembo and 2 Others CAZ Appeal No. 26/2016 ( 6. Belenden (formerly Satte rthwiate) v Satte rthwaite (1948) 1 ALL ER 7. Nkhata and Others v. The Attorney (1966) Z. R. 124 J 2 of 16 This is an appeal against the decision of Zulu J, dismissing the Appellants' claims for ownership of land. In th e Court below, the Appellants were the Plaintiffs and the Respondents were the Defendants. The Appellants sought the following orders; 1. That they are the bona fide owners of a piece of traditional land, in extent of 200m x 150m, in Chawanda village of Chief Kafwimbi in Isoka District. 2. That the 3 rd defendant's occupation of the said land is null and void; and 3. An order of injunction restraining the respondents from trespassing, digging and interfering with their quiet enjoyment. The Appellants who are mother and son alleged that they had occupied the land in question for over three decades, cultivating cassava thereon and had constructed three slabs for three housing units which had all been destroyed by the 3 rd Respondent with the assistance of the 1st and 2 nd Respondents . .. r J3 of 16 The Appellants informed the lower Court that in 2013, much to their displeasure, the 3 rd Respondent started quarrying and digging gravel on their land consequently laying waste to their Cassava field and destroying the 3 slabs. When they approached the 3 rd respondent, the 2 nd respondent intervened and assured them that they would be compensated for their loss. Further attempts to find an amicable solution to the problem proved futile hence the claims. In their defence, the 1st and 2 nd respondent disputed the Appellants' claim for ownership of the subject land and averred that the land had been used as a quarry for years and there had been no form of agriculture, construction or development at the site. It was further averred that in 20 12, the Government of the Republic of Zambia through the Ministry of Local Government and Housing awarded a contract to the 3 rd defendant to undertake maintenance works on roads in Isoka District with Isoka District Council as the client. The following year, the 3 rd respondent moved on site and identified a piece of land where gravel could be extracted. A disused borrow pit was identified on traditional land located in Chiwanda Village in Isoka District. The land was under customary tenure and .., J4 of 16 consent to begin extracting gravel was obtained from Chief Kafwimbe. The Appellants, who were claiming ownership of the land, demanded that the Respondents compensate them in the sum of K28,000 .00 Zulu J considered the evidence presented by the parties and held that the Appellants had failed to prove that the land in question belonged to them and were thus not entitled to the reliefs sought. During the course of the trial, the Appellants' witness tried to produce letters allegedly written by Chief Kafwimbi and the headman , confirming that the land belonged to the Appellants. The Court sustained the Respondent's objection that letters not be admitted into evidence because they were not included in the 'plaintiffs bundles of documents'. Despite the Court's ruling, the Appellants exhibited the said letters as attachments to their submissions. The trial Judge remarked that he did not consider them as they did not form part of the Appellants' evidence at trial. As regards the defence, Zulu J, held that the 1st and 2 nd respondents had similarly failed to prove that they were authorized to quarry on the disputed property by Chief Kafwimbi. He found that the land had been used as a gravel pit as far back as 1968. Following the decision of the Supreme Court in the case of Khalid Mohamed JS of 16 v . Attorney General (1982) ZR 49, the court held , that because the Appellants had failed to prove th eir case, the d efence's case was inconsequential. Aggrieved by the tu rn of events in t h e lower Cou rt, the Appellants h ave appealed raising three grounds as follows: 1. The court below erred and misdirected itself by holding that the Appellants failed to prove that they own the land in dispute despite having found that the 1s t and 2 nd respondent in paragraph 15 of their defence conceded that the Appellants are the owners of the land in dispute . 2. The court below erred and misdirected itself by not ordering the Appellants to properly produce the documents and the court further erred and misdirected itself by ignoring the fact that the Appellants' failure to properly produce the documents is curable. 3. The court below erred and misdirected itself by holding that the Appellants failed to produce evidence revealing that they had put concrete foundations and had planted cassava when the Appellants' viva voce evidence clearly • J6 of 16 demonstrate that the concrete foundation and the cassava field were damaged by the 3 rd Respondent. In the supporting heads of argument, on behalf of the Appellant it is submitted under ground one that, it is an undisputed fact that the 1st and 2 nd respondent conceded that the Appellants are the owners of the property in dispute. Reference was made to page J7, lines 12 to 18 where Zulu J stated inter alia as follows: " ... from the evidence before me, I make the following findings: the plaintiffs in their statement of claim and oral evidence assert that they are the owners of the land and that the same is customary land under Chief Kafwimbi of the lsoka District. The 1st and 2 nd defendant in paragraph 15 of their defence concede to this fact. I therefore find that the land falls under customary tenure under Chief Kafwimbi." (emphasis ours) It is argued that there was a serious misdirection on the part of the court when it h eld that the Appellants had failed to prove ownership of the land. J7 of 16 The essen ce of the Appellants submissions under ground two is that the trial Judge should have considered the letter s attached to the Appellants submissions, written by Chief Kafwimbi and the headman confirming that the land belonged to th e Appellants because they were cardinal and could have assisted th e court to do justice. It is contended that the Appellants' failure to properly produce the two documents was curable because Order 3 rule 2 of the High Court Rules endows the High Court with jurisdiction to order parties to properly produce documents. That in the interest of justice, the trial Judge should have a llowed that production of the documents despite the objection by th e Respondents. The said Order has been reproduced as follows: "Subject to any particular rules, the Court or Judge may, in all causes and matters, make any interlocutory orders which it or he considers necessary for doing justice whether such order has been expressly asked by the person entitled to the benefit of the Order or not. Our attention has been drawn to the case of Zambia Revenue Authority v . Jayesh Shah (1l in which the Supreme Court held that: .., ,I JS of 16 "The rules must be followed but the effect of breach will not always be fatal if the rule is merely regulatory or directory" The Appellants further pointed out that the Court had the option of relying on Order 2 Rule 1 of the White Book, 1999 Edition which provides that: "Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein." The Appellants have placed further reliance on the cases of Leopold Walford (Zambia) Limited v. Unifrieght(2 ) and The Republic of Botswana Ministry of Works Transport and : J9 of 16 Communication & Rinceau Design v . Mitre Limited (3) to cement this argument. In relation to ground three, the Appellants contend that evidence was led in the lower Court to the effect that the foundations and cassava field were destroyed by the 3 rd Respondent's activities. Pictorial evidence was exhibited, and viva voce evidence was led to prove this fact. It is argued that the Court erred by ignoring the evidence. We have considered the record of appeal, the grounds of appeal as well as the heads of argument herein. We shall firstly deal with ground two, wh ich is a procedural issue and thereafter deal with grounds one and three together. The Appellants' contention in ground two is that th e Court was clothed with the necessary jurisdiction by virtue of Order 3 rule 2 of the High Court Rules and/ or Order 2 Rule 1 of the White Book to order the Appellants to properly produce documents. The basis of this argument being that a breach of regulatory or directory rules is not fatal but curable. Several authorities have been cited in support of this proposition. JlO of 16 Although the proceedings on record do not clearly depict the turn of events at trial, we are able to deduce from the Judgment of the Court, as detailed earlier in this Judgement, how the lower Court declined to admit the Appellants documentary evidence. We note Counsel for the Appellants' submissions that a party's failure to comply with regulatory/ directory rules is curable and should not lead to the collapse of a case. The basis of that principle being that matters should be determined on their merit as opposed to being thrown out for procedural flaws - this matter was so determined. The argument by the Appellants however is that the Court should have relied on Order 3 rule 2 of the High Court Rules and/ or Order 2 Rule 1 of the White Book to order the Appellants to properly produce this documentary evidence that was not before it at the time of trial to serve the ends of justice. Order 3 Rule 2 was reproduced earlier in this Judgment and its use of the word "may" signifies that the order bestows discretionary power to the court. See the case of Philip Mutantika and Another v . Kenneth Chipungu.(4 l It is a well-established principle that in an appeal against the exercise of discretion, an appellate court should not substitute its own discretion for that of the lower Court for the ,. sole reason that had it stood in the trial Judge's shoes, it would have decided the matter differently. We recall the words of Asquith W when, in Belenden (formerly Satterthwiate) v Satterthwaite (6l he Jll of 16 said the following; "We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact plainly wrong, that an appellate body is entitled to interfere." We expr essed a similar view in the case of Zimba v. Tembo and 2 Others (SJ The rules required the Plaintiffs in the court below to file bundles of documents containing documents they intended to r ely on to prove their case. We can therefore not interfer e with the trial Judge's decision to exercise his discretion under Order 3 Rule 2 to not allow the offending documents into evidence. • Jl2of17 Coming to Order 2 Rule 1 of the White Book, it connotes that failure to comply with requirements in the rules should be treated as an irregularity and should therefore not nullify proceedings. Even though the trial Judge declined to allow the production of the Appellants documents, the trial was not nullified as it proceeded by the Appellants continu ing with and concluding their testimony and the Respondents giving theirs and the Court finally determining the issues on the evidence that was properly before it. The Court's refusal to consider the documentary evidence did not equate to nullification of the proceedings. For the reasons given, we cannot sustain the argument in ground two and dismiss it accordingly. Grounds one and three attack the findings of fact of the lower Court. In ground one, that the Respondent did not dispute ownership of the land and in ground three that the Court ignored some evidence that was exhibited. Appellate courts generally frown at interfering with a lower court's findings of fact and there are strict parameters within which this can be done. The landmark case of Nkhata v . The Attorney General (7l limits an appellate courts' interference to the following instances: • J13of17 1. the judge erred in accepting evidence, or 2. the judge erred in assessing and evaluating the evidence by taking into account some matter which he should have ignored or failing to take into account something which he should have considered, or 3. the judge did not take proper advantage of having seen and heard the witnesses or, 4. external evidence demonstrates that the judge erred in assessing the manner and demeanor of witnesses. In the case before us, the Court stated the following at page J7 of the Judgment: " ... from the evidence before me, I make the following findings: the plaintiffs in their statement of claim and oral evidence assert that they are the owners of the land and that the same is customary land under Chief Kafwimbi of the lsoka District. The 1st and 2 nd defendant in paragraph 15 of their defence concede to this fact. I therefore (i.nd that the land falls under customary tenure under Chief Kafwimbi." J14 of 16 Paragraph 15 of the defence states as followins: "The works by the Plaintiffs' were being done with the consent of Chief Kafwimbi who has the overall authority to allocate land in the area" (Emphasis ours) After carefully considering the Record of Appeal and the totality of the evidence, it is very clear that the fact to which the Respondents conceded was this: that the land in contention is customary land under Chief Kafwimbi of the Isoka District. We say this because the defence clearly disputes ownership by the Appellants. This is seen in paragraphs 2, 4 and 5. From paragraph 9 to 14 of the defence, the Respondents elaborate on the road "works" which they were tasked to undertake in Isoka District, and how they identified a site which had been used for quarrying gravel. It is these "works" which are then talked about in paragraph 15 as being done with the consent of Chief Kafwimbi, who has the overall authority to allocate land in the area. It is this piece of evidence which Zulu J relied on to make the finding that the land falls under customary tenure under Chief Kafwimbi. To accept the argument of the Appellant in ground one that it is an undisputed fact that the 1st and 2 nd Respondent conceded Jl5 of 16 that the Appellants are the owners of the property in dispute would lead to an absurdity. This is because after making its findings of fact, the Court below singled out the main issue for determination as being this: "whether the plaintiffs are the owners of the land measuring 200m x 150m situate in Chikwanda Village of Chief Kafwimbi of Isoka District" On account of the foregoing, the Appellants argument on ground one cannot be sustained and ground one is therefore dismissed. Under ground three, on the cassava field and three concrete slabs allegedly damaged by the Respondents, it is argued that pictorial evidence was exhibited to show that the field and slabs were indeed destroyed but the Court ignored the evidence. The Appellant, guided by the Nkhata case assails the findings of fact of the Court below on the basis that the Judge erred in assessing and evaluating the evidence before him as he failed to take into account the pictorial evidence. In our view, quite to the contrary, the Court did in fact consider the issue of the concrete foundations and the cassava field. The trial Judge alluded to the evidence of the 1st Appellant in cross Jl6 of 16 examination when he admitted that he had no proof that there were concrete foundations and a field of cassava on the disputed property. He then concluded that on the totality of the evidence that was before him, the Appellants failed to prove their case to the required standard. Perhaps Zulu J did not afford much weight to the pictorial evidence because they depicted the state of the land at the point of the dispute and not the state of the land before any of the alleged damage. We are therefore unable to upset the findings of the Court below on this ground, it equally collapses. All the grounds of appeal having collapsed, the Appeal 1s accordingly dismissed with costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~---• .................. . M. M. KONDOLO, SC COURT OF APPEAL JUDGE C. K. MAKUN ·······~·. . . ' .....•.......... -- B. M. AJULA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE