Belix Kenneth Mutale v Lenard Bwalya Kaluba and Ors (2004/HP /0093) [2020] ZMHC 477 (28 February 2020)

-Rl- IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN BILEX KENNETH MUTALE AND LENARD BWALYA KALUB DON M U LENGA FELIX KANG WA '<'"- \.)RTOF Z PRINCIPAL · 2 s FE. B 2020 2004/HP /0093 PLA I NTI FF 1 ST D Ef◄'EN DANT 2ND DEFEN DANT 3RD DEFENDANT BEFORE THE HONOURABLE LADY JUSTICE M . CHANDA THIS 28TH DAY OF FEBRUARY, 2020 APPEARANCES: For the pla intiff Mr B. Mukatuka of Robson Ma lipe nga a nd Company For the 1s1 defendant: No appearan ce For the 2 11<. I defendant: In pe rson For the 3 rd d e fc nda n t : No appea ra n ce RULING Legislation referred to ORDER XX.11 OF T HE H l G H COURT RULES CH APTER 27 OF THE LAWS OF ZAMBIA This is a n application by th e p lain tiff for the review of th e judgm ent d elivered by Judge Nyangulu on l 7Lh J anu ary, 2 005. Th e brief -R2- background of this case is that the plaintiff commenced this m a tter on 6 th February, 2004 by way of Originating Summons pursua nt to Order 11 3 of th e Rules of the Suprem e Court of England, 1999 edition. The p laintiff's claim was for summary possession of farm S/D21 of S/DB of S/Dl of S/DA of Farm Number 687, Makeni , Lusaka from the d efenda nts who were 1n occupation without a licen ce or consent from the plaintiff. During the h earing of the matter , it was brought to th e court's atte ntion that the exte nt of th e land in contention was five acres and that the plaintiff h a d built his prope r ty on two acres while the defendants were occupying t hree acr es. The court expressed its view that the d efenda nts s hould reimburse the plaintiff the amount of money that h e paid for the three acres . Th e court further stated that two acres of the la nd was to b e r etained by the plain tiff and could not b e taken away from him more so tha t the land had been bought from a n individual and not from the government. When the judgment was deliver ed on 17th January, 2005, the plaintiff noticed that d espite the defendant b eing ordered to pay him K4. 75 million kwac h a for the land, ther e was no m ention of the two acres of land th a t h e was entitled to r etain . It was on this prem ise that the p laintiff a pplied for r eview of the judgment sta ting that the issue of the two a c r es of la nd was not d ealt with by the court . Before the a pplication for r eview could be h eard, the 2 nd defendant also comme nced proceedings under cause number 2 01 2/HP/ 1542 in which h e sued the plaintiff (who now became the d efendan t) -R3- claiming for a declaration that he was the legal owner of the same land. He stated that his claim was arising from the fact that d espite him paying the plaintiff the sum of K4. 75 million as ordered in the judgment, the plaintiff had continued to harass him and his family and had sold part of his plot to an unknown p erson. He also filed an application for an order of interim injunction to restrain the plaintiff from harassing, interfering, en croaching or d eveloping a structure on the property in conte ntion. The 2 nd d efendant filed an affidavit in opposition on the ground that the second cause was a parallel litigation to the first one and therefore amounted to multiplicity of action. The court's ruling in this r egard dated 2 1st February, 2013 was that there was no multiplicity of action by the 2 n d defendant because comme ncing a fresh action was the only route available to him in a situation where the judgment had nol made a specific order to the d efendant for which h e could be cited for contempt of court in those proceedings. The court also granted the application for an injunction in the same ruling. There was no appearance e ntered or defence filed by the defendant and ther efore a judgment in default of appearance and defence was ente red in the plaintiffs favour. The judgment was later upheld by the Deputy Registrar in his ruling d ated 3 rd May, 20 17. The defendant then filed an application to stay execution of the ruling p e nding appeal which was dismissed by the court on 16Lh June, 2017 and h e was granted leave to a ppeal. The plaintiff in this cause then reverted to these proceedings to file his notice of intention to proceed in July, 2017 befor e Banda-Bobo J and the 2 nd defendant a lso filed his opposition to the application -R4- for review of the judgm ent. The matter was r eallocated from Mrs Justice Banda-Bobo to this Court on l 7 Lh July, 2018 . The matter came up for a status confer en ce on 13th November, 20 18. In Keeping with Order XXII of the High Court Rules Chapter 27 of the Laws of Za,nbia the Court proceeded to ascertain and determine what the material issues in controversy b etween the plaintiff and the 2 nd d efe ndan.t were. Upon h earing the parties and a thorough perusal of the proceedings under causes 2004 /HP/ 0093 and 2012/HP/ 1542, the parties were accordin gly directed that th e resolution of their lon g standing grievance over farm numbe r 687 Makeni Lusaka lay in them r etaining a surveyor to demarcate the property in line with the initia l proceedings of 15Lh September, 2004 b efore Hon. Justice Nyangulu and the subsequ ent judgment of the Court r ender ed on 17th January, 2005. When the m atter cam e up for a status report on 22 nd January, 2019 the parties indicated that they had failed to comply with the Court's directive. The Court proceed ed to order t h at the office of the Surveyor Gen eral under the Ministry of Lands be engaged by t h e parties to carry out the said demarcation of the property and render a report to the Court. In compliance with the Court's order the office of the Surveyor General subdivided the farm and submitted the s ite plans s h o,¥ing the location of the subdivision in relation with the boundary of the parent property, Sub D of Sub 21 of Sub B of Sub 1 of Sub A of farm 687. -RS- It is my affirmation that the subdivision and t h e specified dimensions marked as exhibit "BKMl" submitted by the office of the Surveyor General on 24th May, 2019 is in line with judgment rendered by Nyangulu J on 17th January, 20 15 . In view of the foregoing I order that the parties h erein should proceed to obtain title deeds in accordance with the specified dimensions in the Surveyor General's site plan. I further order that Mr Don Mutenda should reimburse Mr Bilex Mutale half of the surveyor's fees. I accordingly order that this marks the close of the two actions under caused 2004/HP/0093 and 2012/HP1542. Dated at Lusaka this 28th day of February, 2020. M. CHANDA HIGH COURT JUDGE