Boniface Simbule (suing as Administrator of the Estat e of the Late Duncan Simbule) and Anor v Julius Chilipamwawo Sinkala and Ors (2009/HP/1093) [2016] ZMHC 229 (21 March 2016)

... .. - ·- - .. - --·-·- ---------·- ·· ----------- IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY AT LUSAKA (Civil Jurisdiction) BETWEEN: , BONIFACE SIMBULE coURT O PRINCIPAL : 2 1 MAR 2016 ~ REr.tSTR¼' ·. .. _~- --- -~ --.-- ""·~ sno61. 1.u_;:....,...· /:Jo C t-,'f- .- . (suing as Administrator of th e Estat e of the Late Dunc an Simbu1e) CONTRACT HAULAGE LIMITED JULIUS CHILIPAMWAWO SINKALA NAKONDE DISTRTICT COUNCI L SDV ZAMBIA L!MITED COMMISSIONER OF LANDS 2009/HP/1093 lsr• PLAINTIFF 2ND PLAINTIFF 1 5r DEFENDANT 2ND DEFENDANT 3RD DEFENDANT 4 TH DEFENDANT Before the Honourable Mr. Justice C. F. R. Mchenga SC For the l s L and 2~ Plaint iff: J. Mwalongo with A Kalikiti and Z. Simposya) MSK Advocates For the 1st Defendants: T. T. Shamakamba, Shamaka mba & Company and C. N. Nhari) Nhari Mushemi and Associates For the Lnd Detendants: G. Lun gu, M11l r:>za M~<Jimbu and Cc>mp.iny For the 3~ oetendants: S. Chisanga wit h I. Si ame , Corpus Lega l Practitioners For the 4th Defend ants: M. Muntanga, Ass i sta nt Senior State Advocate, Attorn ey Generals Cham~ers J U D G M E N T Cases referred to: J2 1. David Nzoona Lumayendo and Goodwins Kafuko Muzumbwa v Chief Chamuka, Kabwc Rural District Council and Zambia Consolidated Copper Mines [1988-1989] Z. R. 194 2. Zambia Telecommunications Company Limited v Valsons Pharma Zambia 3. Galunia Farms Limited v National , Milling Company Li~ited and Another (2004] Z. R. 1 4. Anti Corruption Commission v Barnet Development Corporation Limited [2008] Vol. 1 Z. R. 69 5. United Engineering Group Limited v Mackson Munsalu and others [2007] Z. R. 30 6. Mitchell v Harris Engineering Company Limited (1967] 2QB 703 7. Bramwell v Bramwell [1942] 1 ALL ER 8 . GF Construction (1976) Limited v Rudnap (Zambia) Limited Arthur (1999] Z. R. 134 9. Khalid Mohamend V Attorney General [1982] Z. R. 49 10. Wilson Masuso Zulu v Avondale Housing Project Limited (1982] Z. R. 172 11. 12. 13. My Kinda Town Limited v Soll [1983] R. P. C. 15 Rosemary Phiri Madaza v Awad Keren Coleen (2008] 1 Z. R. 12 Peter Militis v Wilson Kafuko Chiwala SCZ Judgment 3 of 2009 14 • Valentine Webster Chansa Kayope v Attorney-General [ 2011] J3 Vo 1. 2 Z. R. 424 Legis lation referred to: 1. The Lands · and Deeds Registry Act., Chapter 185 of the Laws of Zambia 2. The British Act Extension Act., Chapter 10 of the Laws of Zambia 3 . The Limitation of Actions Act of 1939 of the United Kingdom 4. Th e Lands Act, Chapter 184 of the La~,s of Zambia (Customary Tenure) ( Conversion) Regulations Statutory Instrument No. 89 of Work s r eferred to: 1. Halsbury's laws of England, 4 th Edition., Vol. 36 2 . Black's Law Dictio nary, 6th Edition By wri t of summons supported by a statement of claim, the 1s t plaintiff seeks the following reliefs: (i) An order that the 1st defendant yields vacant possession of Land held under customary tenure given to the late Duncan Simbule by Chieftainess Nawaitwika which said luncl ·l s in next to Stand 211 Nakonde and office block buildi.ng to the st plaintiff is the rightful owner of 1 s t plaintiff and a declaration that the 1 the land in dispute. An orde r that the 1 st defendant immediately excavates and removes his fuel tanks from the 1 st plaintiff aforesaid Land. An order that the 1 st defendant accounts for and pays the 1 st plaintiff all rental income on the said Land paid by SGC Investments Limited from 2004 to the date of file and final settlement . An order that the 1 st defendant pay:; mesne profits to the 1 s t plaintiff from 1991 to the date of yielding vucc1nt pt•sscssion of the Land. (ii) (i. ii) (iv) q• \ l fl t (v) (vi) (vii) An interlocutory injunction restricting the 1 st defendant from getting rentals from the tenants of the said premises and that the r enta ls be paid to court. J4 Further and other relief Costs The 2nd plaintiff's claim is for the following reliefs: (i) That the certificate title relating to Stand No. 211 Nakonde be cancelled as it (ii) (iii) (iv) (v) (vi) was erroneously obtained. The 1 st and/or 3 rd defendant yields vacant possession of the property refer,·ed, Lo as Stand No.211 ond th~t 2 nd plaintiff is the rightful owner of Stand No. 211. An order that the 3,.d and/or 1 st defendant account to the 2 nd plaintiff all received from t he Lease by the 2 nd plaintifrs of the 80,000 litres fuel tank to Sable Transport Limited from 2002 to date of yielding vacant possession of the tanks. An order that the 3 rd defe ndant pays mesne profits to the 2 nd plaintiff as from 2002 to the date of yie lding vacant possession of the land. °Further and other r e lief Costs Al ex Makapa vJas th e 2nd plai ntiffs-' first witness (Pwl). He is their Human Resource Officer and hi s evidenc e was that in 1970 or in the early 1970' s , the 2m' plaintiff approached Headman Mwenitindi under Chief Nawaitwika, in Nakonde Di strict, for l and to store fuel and pa rk trucks. They were gi ven land close to t he border with Tanzania which was 100 x 80 met r es i n size . To the north of that land., there was a filli ng statio n for Mr. Sirnbul e, while in the sout h were premises for Zambia -Tanzania Road Services . . .. ·,.cat-A>-r JS They secured the premises with a wire fence and in 1975 they mounted an 80)000 litres tank for diesel. They also built a temporal structure and operated from the premises until 1985. That year) Zambia - Tanzania Road Services was liquidated and they bought their property. Since it had a permanent structure) an office block and 2 x 80,000 litres storage tanks, they moved into it. Their original property rcmcJined dormant but the tank remained there. In 1 995, the 2nd plaintiff was placed under liquidation. At the time) he wa s manager of th e Nakonde branch a position he held until March 1998 1t1hen t he br~nch ·was closed and he w.:is retrenched. In 2002) t1e was rec alled and 1,1h en they st zirted accounting for the 2nd plaintiff's property , they di scovered that the receiver sold one of them in 2001. They al so discovered t hat the property they were given by Headman Mwenit i ndi was under t he charge of the 1 st defendant and he was renting out the fuel tanks to Sable Transport. Th ey wrote to the 1 st defend ant and demanded that he surrenders the tanks and t he premises. Hi s r esponse was that he bought th e tanks a nd th e premi ses from Mobil Oil; he r efe rred to the docume nt at page 41 of the Plaintiff's Bundl e of Documer, ts as being a copy of the letter they receiv ed from him. Whe n they followed up the matter with Mobil Oil, )6 they discovered that the sale did not take place because Mobil Oil never operated on that piece of land nor owned the tanks. The 2nd plaintiff decided to sue the 1 st defendant because the certificate of title for Stand 218 was in his personal name. He referred to the document at page 46 of the Plaintiff's Bundle of Documents, · a copy of certificate of title No. 9047 and said the 1 st defend ant referred to it in his letter. According to that document, the land is 11.8 hectares while the land they acquired from the headman was 100x80 meters in size. The Tanzania- Zambia Road Services land was less than a hectare. • 1i. Pwl also testifi ed t hat the 3rd defendant is claiming ownership of the same land and ha s a ccrti f icate of title . He did not know when they got it but he is ce rt a in that t hey have one. The 2nd plaintiff does not have any title deed because both pieces of land are under customary tenure. Finally, he te s tifi ed that the 1st defendant did not put up any st ructure on the land and t hey wa nt t heir tanks and land return ed . They also want the rental s paid by Sable Transport paid back. When he was cross-examined by Mr· . Nh a ri, Pwl sa id he joined the 2nd plaintiff on 10t h July in 1973 . They conducted a prope rty audit in 2002 • I I I ii ii ll II !,. :a , ~111 Im m m · ~ li. • •• • Ill Ill (Ii • i J7 after the receiver was removed and it was discovered that the property was in the hands of the 1st defendant. He believes he has a certificate of title issued in 1993. In his continued cross-examination by Mr. ChisangaJ Pw1 said he knows the perso~ who represe nted t~e 2nd plaintiff when the property was acquired from the headman in 1970. Though no letter written in the 1970' s has been exhibited in the Plaintiffs Bundle of Documents) he knows that one was written to the headman. According to him~ Stand 211 and Stand 218 are the same, Stand 211 is 100x80 meters and was given to them by the chief. He believes the 3rd defendant got the certificate of title for the same property as a result of a m{stake . He admitted that the Commissioner· of Lands has not indicated that there was a mistake when the certificate was issued. He admitted being aware that the District Commissioner for Nakonde confirmed that Stand 211 belonged to the 3rd de fend ant . When he was re-examined, Pw1 confirmed that paragraphs 15 and 16 of the 2nd Plainti ff1 s Statement of Claim make reference to an error in the issuance of the certificate of title to the 3~ defendant. He also referred to page 40 of the Plainti-ff,s Bundle of Documents and page 56 Zl m iim:i Ii.ml ;iu,11 .4-~~ ~ a:~ ~ ' ,., .... ·f . ~~\ ~·'·' r '"'2" j r. ~~! ~,,..,..., r. r ~I :r ' -~ :r. of 3rd f De endantJs Bundle of Documents and said there was correspondence on the mistake in the allocation of the land. J8 Accor.ding to the letter at page 41 of the Plainti ffJ s Bundle of Documents J the 1 st defendant occupied the lahd in 1993. Page 46 of the same bundle indicates that Stand 218 is 11 hectares while the size of Stand 211 is 100x80 metres. He also referred to pages 21 and 22 of the Plaintiff J s Oundle of Documents ·and said the document at page 21 is dated 29 t h J anuary 2007 and indicates that the land was allocated to the Zambia Tan zania Road Services between 1972 and 1973 . Pwl was the only witness called by the 2~ defendant. aoniface Simbule, the l ~t plaintiff) gave evidence on his own behalf. He testified that before hi s demise, on 3rd February 1980) his father used to be in th e transport bu s ines s and was running a filling station. It wa s run on a deal er owned site with Mobil Oil providing the equipment which included tanks and pumps. The filling s tation was closed two yea rs after hi s father) s death beca use the fell back on payments to Mobil Oil. Though they s ub s equent ly man aged to pay the K28 J 000 the owed) it remained do rn:;rnt for some years . .,- . ~·· ~, :. f ., .t· .. ,,, · __ - 1 c. .. \~- ·'1 ~:,jf \11 ~,I 1, 1. ~~· '\ J9 Subsequently, he left Na ko nde and came to Lu sak a. After staying for a number of years, his relatives in Nakonde called him and in formed him that changes had taken place at the filli ng station . It had been painted in colours other than those · for Mobil Oil and they as ked if he had sold it to the 1 st defendant who was claiming to be its owner . He travelled to Nakonde and the SGC employees at the f i ~ling station t old him they had leased it from the 1 st defendant. The 1 st defendant attempted to have contact with him but he refused to meet him. The 1 st plaintiff then travelled to Mobil Oil Lusaka and met Martin Meleki. He gave him r ecei pts for the sale of the pumps to th e 1 st defendant. He r efe rred to documents at pa ge 10, 11 and 12 of the Plaintiff ' s Bundle of Documents as being a document relinquishi ne th e pumps; the 1 s t defendant's cheq ue paying for the payment and a document setting out t he seric:il numbers of the pumps . He was also given the document at page 13 of the Plaintiff's Bundle of Doc ume nts which relates to the sale of pumps and tanks . They denied selli ng the land to him . After~ fami ly meet ing, th ey reso lved t o approac h the 2nd defendant and demantled that they cancel the certificate of t itl e the 1st defend ant had for the land . He al so gave t twm the l et ter at page 16 of the J10 Plaintiff's Bundle of Documents and the 2nd defendant resolved to send some counse ors to Lusaka. Following · representatio ns · to the 4th defendant, the certificate of title was cancelled but it was later reinstated. Finally, he prayed that the land be returned and that the court grants him the other reliefs endorsed on the writ . When he was cross examined by Mr. Nhari and referred to the document at page 16 of the Plaintiff's Bundle of Documents, the 1 st plaintiff denied giving the 2nd defendant documents ind icat ing that the 1 st defendant was renting the premises from his father·. The statement in the document that the 1st defendant was renting from his father is not correct. The do c uments at pages 10 to 12 of the Plaintiff' s Bundle of Documents were given to him at Mobil Oil but not the one at page 13. According to the l etter dated 22nd March 1991, wh i ch is at page 13, the 1 st defendant paid Kl,200,0~0 for the tanks and pumps only . However, the document at page 11 indicates that he bought the pumps at page K400, 000. He did not know wlio was operating the filling station in 1991 because he was in Lu saka. Wh i le he cannot confirm that the 1st defendant started operating in 1991, the documents he has come across -~ t..-i.~ t _I. -~ '• J11 .1 J11 indicate that it is the case. He discovered that he was operating it in 2004 when he was contacted by his relatives . The 1st plaintiff admitted that the writ was filed on 18 th February 2011, which was 20 years after 1991. He also admitted that the letter on page 28 of the Plaintiff's Bundle of Documents ~v;Js not copied to the 1 st defendant. When he ~.;as re - exam ined, the 1st plaintiff said he did not lease out the property. The letter at page 10 of the plaintiff's Bundle of Documents \·Jas from Mobil Oil and that the 1st Defendant's Bundle of Documents had a copy of t he same document. Finally, he said that the defendant' s defenc e makes no mention of wh~n the action was commenced. Dickson Singoyi vJas the 1s t plaintiff's second ~vitness (Pw2). He ,_ recalled the year 1968 when his brother used to be good friends 6ne Duncan Simbule, a business man. Through their interactj_on he learnt that Mr . Simb ul e was running a bar, guesthouse, supermarket and minimarket. He also had a transport business. He learnt that he wanted to establish a filling station and t hat he had acquired customary land th0ugh village Headma n Mwenitindi from Chieftainess Nawaitwika. He was ,. I ~ -1~ I • . i~~J "i~ I : ~~ I • l ·. ~ P"r:'~1 ~ 1"~ l ~ ~r.'!l :~ I 1,~ I:. !'f' '. ,'fl ·,, , I ' ,11 :II I II ·~ i UI UI 1. Jl Wti )12 th en given a dealership and he started constructing an office block• He saw him ferry sand and burnt bricks to the site. In . 1970, he invited Mobil Oil to bring fuel pumps and tanks to the site. The filling station became operational and run very well between 1970 and 1980 when he died. When he was cross-examined, Pw2 said Mr. Simbule acquired the land in 1968. He was not aware that the pumps and tank were sold to the 1 st defenda nt and that he took ove r the running of the filling station between 1985 and 1991. JI JI Darlington Mwaba Chalikosa was the 1s t plaintiff's third witness (Pw3). His evid ence was that he joined Mobil Oil in 1979 and left in 1982. He was employed as a sales agent and dealt with Mobil Oil business in Nakonde. When they r eceived information that Mr. Simbule was buy in~ kerosene, petrol and diesel, they approached him and provided him underground tanks and pumps. The dealer provided the land, labour and had to buy their fuel and other products. Wh e~ he left Mobil Oil (in 1982), they were still operating but where behind in payments . He believed l.hc business arrangement with Mobil '. Ill ! •1 :BI •• : • .ji I · till \ )13 Oil ended around 1984. When a deale rship ended in such cases, Mobil Oil would recover the equipment and ta ke it back to Ndola. It did not happen in this case because someone was ready to buy it. They sold the equipment to the 1st defendant . It was also his evidence that the lette rs at pages 10 to 13 of the . Plaintiff's Bundle of Documents relate to the relinquishing and sale of the equipment by Mobil Oil to the 1 st defendant and they have nothing to do with the sa le of land. When he was cross exami ned by Mr. Nhari, Pw3 said he left Mobil Oil in June 1982 and at the time he left he was Sales Manager. He was not working for Mobil Oil in 1991 and the first time he saw the documents at pages 10 to 13 of t he Plaintiff's Bundle of Documents was in cour~. He admitted not witnessing the transactions between Mobil Oil and the 1 st defendant and that hi s testimony was based on what he was told by others. He did not know whe n the 1 st defendant started operating the filling station. Enos Sichinga who is Headman Ntindi was the plaintiff's fo urth witness (Pw4). Hi s evidence was that IH.• kne\v Duncan Simbule and al though they stayed in the same village br,t Wt'1'r1 J<) 'j 6 and 1980, they are not ]14 related. Mr. Simbule asked for land from his late father because he wanted to start selling fuel. He was given land along Malawi Road where he constructed a filling station and operated it until he died in 1980. When he died) his son took over but he never interacted with I the son. In 2004) he received a group of people who wanted to know if he had had signed documents to enable the 1st defendant obtain a certificate of title for the land where Mr. Simbule had been operating a filling station. He told them that the 1st defendant never approached him for that purpose and he advised them to sue . Later, he gave documents to the 1st plaintiff so that he could obtain a cert ificate of title; he idPntified the document at page 25 of Plaintiff's Oundle of Documents. Evans Sichinga, his young brother was th e secretary at the meeting that resolved to allow him to obtain a certificate of title. The l etter w~s to be taken to the chief who sent his indunas to inspect the land . The 1st plaintiff was cleared because he recognized the allocation that hi s father, Paul Sichizya, made to Mr. Simbule when he became headma n. \ :)11 l ·i11 • \_ • L. \Bll liu l I I I l. ]15 11 When he was cross-examined by Mr. Nhari, Pw4 said only the 1st plaintiff came to ask for authority to obtain title to the land. He was aware that there was filling station run by Mobil Oil and it was connected to Mr. Simbule. He did not see any document signed by the two parties and did not know the arrangement between them. There was a ' I l 1, \ ' uuilding and s storage tanks at the filling station. He became headman is 2002 and Thomas Sichinga was village headman in 1991. Between 1983 and 1991, he was in Mufulira working as a miner. He found the 1 s t defend ant operating the filling station in 1983. Wh en he was cross examined by Mr. Chisenga, Pw4 said his late fat her gave the land to Duncan Simbule but he was not party to the transaction . He confirmed that there was no written document for the transaction and said it was because they did not give documents at the time. He is aware that in 1993 the 4th defendant issued certificates of title to the same land but they we re not consulted . W~en he was re examined, Pw4 said he wrote a lette r for Boni face Simbule i n 2004. His testimo ny marked the close of the pla i ntiffs ' ca se. JI Ill I ..• , !II I ·•1 • I ' .• , • I ,. I I -I • \ • •t i \ ~ • IJll JI Ill l ,. '. Iii The first witness for J16 the defendants was the 1s t defendant. His evidence was that following a visit between 1981 and 1983, it came to his attention that there was no filling station in Nakonde. He approached Mr. Cliff Wider the Managing Director of Mobil Oil after identifying a filling station that was intact but not functional. It was agreed that he could run it as long as he got fuel from Mobil Oil. . . He started trading in 1-985 and he is still · operating but the filling station is now leased out to SGC. In 1991, Mobil Oil offered to sell the filling station to him. He paid Kl,200,000 cheque and they gave him a letter a copy of which is at page 6 of the 1s t Defendant's Bundle of Documents confirming the ~ale. He was also given a document that came from Isoka District Council allowing Mobil Oil to construct the filling station. It was copied to the Commissioner of Land s and copies appear at pages 3 and 4 of the 1st Defendant's Bundle of Documents. Further, they handed him a document through which Mobil Oil informed Isoka District Council that they were moving on site. Finally, he got an advert from the Times of Zambia of 3rd March 1970, which appears on paees 1 and 2 of the 1st Defendant's Bundle of Documents. He brought the l etters to the 4th defendant because Mobil Oil did not have t1 ccr' tificate of title and he was later given a 14 years lease. I .• , I • ·•1 I l ' •• •• I ~ .1 ~-• ·1 llll l I -I -. I \ • • I • lllll ,1 Ill I p !l!!I ,pm ntt·f , ... i. ]16 The first witness for the defendants was the 1st defendant. His evidence was that following a visit between 1981 and 1983, it came to his attention that there was no filli ng station in Naknnde. He approached Mr. Cliff Wider the Managing Director of Mobil Oil after identifying a filling station that was intact but not functional. It was agreed that he could run it as long as he got fuel from Mobil Oil. He started trading in 1·985 and he is still · operating but the filling station is now leased out to SGC. In 1991, Mobil Oil offered to sell the filling station to him. He paid Kl, 200,000 cheque and they gave him a letter a copy of which is at page 6 of the 1s t Defendant's Bundle of Documents confirming the sale . He wa s also given a document that came from Isoka District Council allowing Mobil Oil to const ruct the filling station. It was copied to the Commissione r of Lands and copies appear at pages 3 and 4 of the 1st ~ Defendant's Bundle of Documents. Further, they handed him a document through which Mobil Oil informed Isoka District Council that they were mov i ng on site. Finally, he got an advert from the Times of Zambia of 3rd March 1970, which appears on pages 1 and 2 of the 1 s t Defendant's Bundle of Documents. He broue trt t he letters to the 4th defendant because Mobil Oil did not have i1 cc~r' tificate of title and he wa s later given a 14 years lease. -- · .. : ... . ~. - -· . .. ... J18 said the Kl,200,000 he paid was for the land and not tanks. He started trading in 1985 but it is now leased out. At page 11 of th e Plaintiff's Bundle of Documents is the cheque that he paid . He paid for the pumps in March, 1991 . The letter at page 6 of the 1 st Defendant' s Bundle of Documents was writt e n to the Commissioner of Lands by Mobil Oil and he took it immedi ate-½'. That was in about 1991 and he denied going there in 1984. He admitted that the lette r makes no mention of land and indicates th at he bought tanks. He maintained that the Kl, 200,000 he paid was not purchase of tanks and pumps only. JIil The 1 :;t defendant admitted signing the letter at page 10 of the Plaintiff' s Bundl e of Docume nts and that it \.-. Jas from Mobil Oil. He admitted that the l et t e r does not mention the relinquishing of land. He maintained that he started trading in 1985. He admitted that the l etter at page 13 ·of Plaintiff's Bundle of Documents show s the purchase price as bei ng Kl,200,000 for 5 tanks . It makes no mention of land. He bought th e land from Mobil Oil but did not execute a contract of sale. ll I ~:I - JI )19 When he was re-examined, the 1st defendant said the letter at page 10 of the Plaintiff's Bundle of Documents relates to the replacement of pumps. The one applicable to him is the one at page 13 of the Plaintiff's Bundle of Documents which indicates that he bought the pumps and the land on which they were. The document at page 1 of the l st Defendant's Bundle of Documents shows that he did not just buy the pumps but also the land on which they were. He maint ained that Stands 218 and 1236/M are the same piece of land . He bought the land because the sunken tanks and administrative block are on th e land. Th e 4 th defendant pulled out the file on which they were corresponding and said the letter from Mobil Oil was sufficient . They did not s ign a contract of sale because they said it was not necessary. Webster Nonde, a fo rmer employee of Mobil Oil was the 1st defendant's fir"st witness (Owl). Hi s evid enc e was that he worked for Mobil from Seplember 1993 to December 2005, as distribution Manager and Managing Director. They had f iles for customers that included historical details . The filling station in Nzikonde was developed following the acq ui sition of th e land by l'-hil > i I Oil in 1973. There were two buildings, storage tanks and h 1<• I p1 11J1p<. on it. In 1991, they decided II II ; ·•·11 ;.;I .i ~ ·-11 J20 to sell it to the 1st defend ant but continued to supply fuel to it - What was sold was the land, the storage tanks, buildings and pumps and this is why it was not included in the assets transferred to Total Zambia in 1005. I ~~ .\.._ I ,,~ The Nakonde filling stJtion, at the time he dealt with it, was dealer owned and dealer ~perated. The whole property was owned by the dealer but Mobil ~--.,as in an arrangement to supply products. For the period 1993 to 2005 the filling station did not appepr as an asset in their books. The l ett e r of sale his predecessor wrote about it referred to the number on the sketch diagram because the survey diagrams had not yet been proces sed . In the letter at . page 6 of the 1 st Defendant's Bundle of Doc ument s , th ey informed the 4th defendant that the property had been tr,:in sfe rred to the 1 s t defendant with effect from September 1991. Stands 1236/M and 218 Nakonde is the same property. As regard s its being referred to as Nak/2/DP and 218 , it wa s hi s evidence that one refers to the number on the s urveyed diagram and whilst the other refers to t he sketch number. He was not aware that the land belonged to Mr. Simbule and the record s do nol s how ownership by a third party. l I ll ~ I! ~ ' -p ll JI ~ -tt J21 Mobil Oil gut the land from the local authority which had in invited the public to apply in 1970. When he was cross examined) Owl confirmed that the document on page 2 of the 1st Defendant's Bundle of Documents is the advert for the land Mobil Oil was allocated . He admitted that there was no property number in the advert and the number "1236/M" only appears in the second line. He also admitted that the document at page 5 of the 1 st Defendant) s Bundle of Documents is what he referred to as "Diagram No. Nak/2/DP" and that he referred to it using the plan number because it was not surveyed . He did not see any survey diagram at the time he was with Mobil Oil becau se the land w~s not surveyed. The lett er at page 6 of the 1 st Defendant's Bundle of Documents makes reference to the s ale of the property in two ways. The first is through the tra nsfer of the filling station) plant and facilities i while the second paragra ph it makes r eference to the storage tanks and forecourt. When he was referred to pages 9, 10, 11., 12 and 1 3 of the 1 st Platntiff' s Bundle of document~ . he said document No. 9 was signed by the company's Retail Terri tor·y Mt1nugcr and by it they were selling the _,.... ____ ,.._,... ______ _ _. ___ .,__.,..._.....,,...,._., ... --.. - ---....... ~ - ---·-- ft m J22 pumps in 2002; at page 11 is a cheque for what looks like K400, 000; page 13 refers to the sale of tanks while page 10 refers to the sale of pumps; and the document at page 12 refers to two dispensing pumps in December 2002, at the t i me -the l 5t defendant owed the land . He confirmed that Nakond e was dealer owned. He also confirmed that the document at page 13 of the Plaintiff's Bundle of Documents r_efers to the sale of 5 tanks to the 1 s t defendant on 22 March 1991; so does the document at page 6 of the 1 st Defendant's Bundle of Documents dated 25 th Septembe r 1 991 . He denied the suggestions that they were sold twice and said they were only sold once, in December 2002. He admitted that the 1 st entry on page 9 of the 1 st Defendants Bundle of Documents is II dated 10th Jun e 2002 and the pumps were sold in Decembe r 2002. Owl confirmed t hat Nakond e f iling station was dealer operated and between 1993 a nd 2005 and it did not appear in the register of assets ; for Mobil Oil . Th e 1st defenda nt owned it in 1993 wh en he joined. There wer e no title deeds at the time . it was sold but only an offer letter ·from the local authority, provincial authority and the Ministry of • Land s . Cliff Widah was the Manag ing Di r ector at the time of sale and no contract of sa le was s i en~d wjth t he 1 st defendant. Th e do c ument at page 5 · h st 1n t e 1 Defendant''.-> ll11r1d.l C.' of Doc uments , the sketc h di agr am ! ..- I >lit t=I ·11 •• lll .'JI • • II II • ~- II I I I I I • J23 was approved in April 1973. Though the number 1236/M is not on the diagram, it relates to the same land where the filling station is. When he was re-examined, Owl said they used to replace pumps every five years and the pumps r eferred to in the letter of December 2002, where 19 years and at the time the station was sold. There could have been s~bsequent replacement and so the pumps referred to in the letter t of 2002 are not the ones referred to in 1991 letter . The 1st part of the document at page 6 of the lrt Defendant's Bundle of Documents refers to the transfer of the filling station and the land. At page ~ of the same bundle, is the site di~gram and its plan or diagr am number i s NAK/2/DP. The document at page 13 of the Plaintiff's Bundle of Documents and the one at page 6 of the 1st Defendant's Bundle of Documents a re related . They set out the sequence of events, the sale took pla ce in 1991 and the subsequent letter itemises all that was sold. Finally, he said Mobil Oil had documents that indicated th at they had title to the land but they went away with ~11 of them at the time they left the country. Mr . Lungu informed the court th.:it t he 2nd defendant was not going to call any witne sses . l!I E ii ]24 Namani Mwanza (Dw2) gave evidence on behalf of the 3rd defendant. He is from Bollori Af rican Logi sties Zambia previously known as SDV. His evidence was that in December, 1990, management at AMI the forerunner to SDV, applied for a Stand in Nakonde -from Isoka District Council. This was because at the time, Nakonde was not a district. On 21 s t January 1991, they were advised to submit an application though the Development Co"mmi ttee and he referred to page 1 of the 3 De en an • f d t, s t rd Bundle of Documents. In June 1991, the 2nd defendant's Development Committee 'for Nakonde sat and approved their application. The application was also approved by a full council meeting on 10th June 1992. They submitted the approved plan s in August 1992 and after making payments the 4th defendant issued them a certificate of title in May 1993. He referred to the documents at pages 1, 5, 12, 16, 32 and 36 of the 3rd Defendant's Bundle of Docume nt s as being documents t hat set out the steps they took 1 to acquire the lond. He said Stand 211 belongs to them and there is no claim on it apart from the encroachment. They have not developed the land because of enc roachment and there has be~n litigation on it 2002. Tho1 11:h the 4 th defendant advised that they be gi ven another piece of l<-rnd , t lie 2m1 defenda nt has objected to doing ll II I I J25 50 indicating that there are no grounds on which a new plot should be given to them . When he was cross-examined, Dw2 said they applied for .the land iri 1990. They have not put anything on the land other than small structures put up by Mr . Sic hone and another person. The land was given to them by the Commissioner of Lands after an application to the 211d defendant . He ha_c:; not heard of the 2nd plaintiff's claim and there is no tan k with in the boundary of Stand 211. If SDV was given alternative land, the matter would have been resolved but l hey were not given nor have they been compensated. He admitted that the page 40 of the 3rd Defenda nt's Bundle of documents shows th at the 1·· 1 defend ant's Stand 218 has encroached on SDV' s Stand 211. He is awiJn~ that the 1st defendant claims that Stand 211 is part of his land. He is also aware that the 1st defendant and the 3rd defendant have been to court before. -·-- - -- When he was re-exiJmined, Dw2 said he was shown the boundaries of Stand 211 in 2009 by the offic e r s of the 2nd defe ndant and there is no tank on it. The 2nd defendant c l aims that the 1st defendant's l and has encroac hed on their l and but it does not tak e up the entire stand . ~ i~I Iii I •• I I -\ I ,, • • • • ~ -~ .· ~,- • • • ii II II • 01 )26 Paul Kalumba (Dw3) a legal officer in the office of the Commissioner of Lands gave evidence on behalf of the 4th defendant. His evidence was that according to their records, Stand No. 218 was issued title in the names of the 1st defendant after he submitted the standard forms. These included a council recommendation letter from the 2nd defendant and l~nd application forms. The proµerty was not surveyed at the time the initial application was made but they relied on a sketch plan and gave him a 14 years lease. In 2005 they received a letter from the 2nd defendant requesting them to cancel the certificate of title because it was encroaching on Stand 211. They were al so informed that three other properties existed within Stand 218 l11hich wus 11 hectares. These where Stands 221, 33B and 332. The Commi ssioner of Lands proceeded to cancel the certificate. The 3rd defendant who owned Stand 211 opted for settlement out of court. They indicated that if given an alternative piece of land, they would s urrend er Stand 211. The certificate of title for Stand 218 Nakonde wa s later reinstated on the belief that the matter had been resolved when the 3~ defendant had optect out. It was a mi sta ke on their part because it still encroached on Stand 211. They have not cnlircly cancelled t he certificate of tl_ I I 1. I I II I II -- ' ~ u ll ll ll I II I , .• • • , .. . •-, ._, i- • :. • • •• -- II J27 title for Stand 218 because of court proceedings . He was not sure of the documents that the 3~ defendant submitted to obtain the certificate of title. When he was cross-examined, Dw3 said the documents from the 2 nd defendant indicate that that both Stands 218 and 211 were formerly under customary tenure. He has seen a recommendation letter from the 2nd defend ant on the file for Stand 218 had Annexure A forms. The documents at pages 23 and 24 of the Plaintiff's Bundle of Documents, dated 27 th January 2007, do not mention the 2nd defendant but the 1 st and 2nd plaintiffs . He wa s f~miliar with the land at the Zambia Tanzania boundary . The document on page 51 of the 3~ Defe ndant's Bundle of Documents is the l et ter that recommended t he canc e llation of the certificate of ; title for Sta nd 218 Nako nde . To hi s knowledge, the 1s t defendant did not fo llow what was s uggested in the lette r. He is not aware that following the letter at page 53, t he title for Stand 211 wa s cancelled. He is not aware of the 3rd defe ndant approaching the local authr,ri ty. He is not aware of ~vho wr'ote the notes on the documents on pages 54 a nd 55 of the 3rd De f<•11cl.in t: • '., Uundle of Doc uments . The 3rd 'll , J28 defendant refused an alternative land and the title to Stand 211 r emains cancelled. He was not aw;:we of. any advertisement relatine to Stand 218 Nakonde, As regards the document on page 2 of the 1 st Defendant's Bundle of Documents, he has come across L/1236/M and it belongs to a Mr. Dickson Singoyi and he bel:::-{es it is on title. He maintained that the 1st ,I defendant's land is Stand 218 Nakonde. The land at page 3 of the Defendant' s Bundle of Documents was land under customary tenure and he believes the certificate of title was issued on the basis of the , letter dated 23 rd May 1973. The entry at page 9 of the 1 st Defendant's Bundle of Documents, d;:ited 10th June 2002, does not refer to any sale of land to the 1. s t defendant nor does it indicate that the previou s owner was Mobil Oil . The 4 th defendant does not effect changes to an entry affecting ownership on the basis of letters but contracts of sale and assignments. '1 , When he was cross examined by Mr. Shamakamha, Dw3 said as of now, the certificate of title for Stand 218 Nakonde i s not cancelled as the entry was reversed. According to the 1st defendant' s document, t he land where M'Jbil Oil built t he -fili ng s tation is the same land known as Sta nd 218 . They got it after· writing to the Commissioner of Land s and ... \ ]29 he leased it to them. According to the same records, Mobil Oil was the owner and they surrendered the lease to the 1s t defendant. Though there is mention of a lease, no title existed at the time they were not supposed to surrender title. He admitted that the document at page 6 of the 1 st Defendant's Bundle of Document s -confirms that the 1 st defendant purchased the structures . on the piece of land from Mobil Oil. It was his evidence that even if the land was not surveyed, Mobil Oil would have obtained a 14 years ,~.3(':'11'\ ~ leas e but -~ there are no documents of ownership. The 2nd defendant prepared minutes recommending that title to the land should be given . The sketch plan at page 5 of the 1s t Defendants Bundle of Documents was prepar ed by Ka sama Provincial Survey Office. The certificate of title for Stand 218 wa s ca ncelled because it was 11 hect ares a nd it was swallowing Sta nd 211. Since they ca nnot prove fraud, they assume that the certificate of title wus iss ued by mi stake on the part of th ei r officers. Had Sta nd 218 been state land, the 4th defendant would have r eso lved the di ffic ult administ r ;:it:i vely by giving the 1 st defendant 1 hecta re and returning the land tn t lw c L:iimants . to him . .. • • • • !. •• •• • k• J30 While chiefs are represented in the rural council 1 it is not t rue that the chief consented to the 1 st defendant being given a certificate of title. The standard procedure of conversion of land under customary tenure was not followed in the case of Stand 218. He was not aware that Government requested the Isoka Council to find land to be given to Mobil Oil to build a filling ~tation. The Ministry of lands are at fault for issuing a certificate of title for · Stand 218 when the procedure for converting land under customary tenure was not followed. -II Th e complaint over Stand 218 was received in either 1990 or early 2000 1 s. The only document the complainants had was a letter from one of the headmen. The claim that it was land under customary tenure was confirmed by the Kasama Regional Office. The letter at page 23 of the Plaintiff's Bundle of Documents dated 27 th January 2007 1 confirms that t he l ease wa s i n 1973; Mobil Oil wrote to them but there was no : written response from the 4th defendant. The 4th defendant did not give t he property to Mobil Oil because hG has not come across any document to t hat effect. The document on pagp 27 of th 1' r J .:i:i n t i r r ' s Bundle of Documents is an ext ra -.:t of minutes of the coun c.i l ;J L N.ikonde. The 1st plaintiff was I • • ~-- • : " . JI . SI - Ill ]31 given title to the same land after he got permission to convert it from customary tenure. The permission was in order. He was not aware that the Gove rnor requested for valuation of th e land before it was given to Mobil Oil. He denied coming across a Mr. Chipa sha when dealing with Stands 211. and 218. He also denied coming across information that authority was obtained from the traditional authority before the land was given to Mobil Oil. He said it was possible that some documents were lost from their file for Stand 218. He learnt that the 1s t plai ntiff occupied the property as far back as 1979 and s ought the consent of the chief. While they cannot prove fraud on the part of the 1 s t defendant, there was a mistake on their I part. Whe n cro ss-examined by Mr. Nahri, Dw3 said he could not establish when 1 Mobil Oil took po ssession of the property. In 1973, Mobil Oil communic ated their intention to erect a filling station and it is the same filling station that Lhe 1 s t c. Jefemlc.1r1t bought. They became aware of the dispute ove r t he two properties sometime in 2000 and the coundl wrote them in 2005 . He hcJ s not seen any document between Mobil II Oil a nd the 1 s t defendcJnt conccn.i rig Lhe land transaction. f -: ,, l Ci ,I '9.i ]32 At the time they were processing the application for title for Stand 218, they had not established the Folios Sect ion where they are now comparing all applications for title against existing properties before issuing certificates of _title. They relied on the 2nd defendant who they believed had given them the correct position on the status of the land. l✓h en the 2nd defendant recommend ed the 1 st defendant for a certificate of title wi thout the consent of the chief they thought it ,I was state l and, it only came to their attention a few years later that it wa s n' t . Thei r r ecords have not esta blis hed how Mobil Oil ended up on that land. All they received befo r e processing the application for title - for Stan d 218 was a letter f rom the 2nd def endant and the land was not surveyed at t he time . I t i s only after it WilS surveyed that i ts correct extent was determi ned . fl When he wa s r e-exami ned, Dw3 sa id it i s the re s ponsibility of an appl i cant f or a ce rti ficate of t itle t o l and und er cu stoma ry tenure to obtain the chi ef' s consent. II • I Wr itt en submi ss i ons we r e filed in on behalf of the plaintif f s , th e 1st defend ant and the 3rd defend ~rn I • I . •• I . I I i • J33 Or1 beh lf a of the plaintiffs, Mr. Mulon~o submitted that the issue for cetermination is the ownership of Stands 218 and ' 2f 1 Nakonde, ~etwe en the two plaintiffs on one hand and the lrt and ;3 rd . defendants, ~ n the other han~. l ;-,:-·e su bmitted thcJt Sections 33 and 35 of the Land and J Deeds . Registry Act provide that a certi fi e ate of title is conclusiYe evidence of I :~oof of ownership unless the contrary is proved. He referred to the ,~ ::i se of David Nzoo na Lurnaye ndo and Goodwins Kafuko Muzumbwa v Chief ~ - I r t Cham uka and Kabwe Rural District Council and Zamb~a Consolidated Co pper Mi nes (1) and submitted that though no right . by adverse L :Jss ess ~:r ea~ be acqu ired after land becomes the! s~bject of. a : .::··-:i.fic,~:-: J :it le, Section 32 of the Lands and' Dee~s Registry Act I :!->at i·,= proved, any rights or benefits that !existed at the • ::",e issua nce of the certificate will overrid~ t _ho'se created ' I if:e r i : was issued . He argued the pl~intiffs cannot I ' chal l enge the certificate of title_ for 218 Nakonde after 10th June ' 2001 : , and in th e case of 211 . Nakonde, after 26th May 1993, I the plaintiffs I have proven possession fo r 12 years prior to their issu~nce. that while . : . . ' i • ' There{~ evide nce that the land was given to the lrt pldintiff's -~athef ! fo r the establishment of a filing station in 1968. He put up an office I ! . I • .. . . ! ; J34 bloc k ·with ·the t help of Pw2 and ran it yp to 1980 when ~e died. The 1 5 · de fe nd ant took possession in 1991 and the certificate o{ file was only . · issued 32 years l ater) in 2002. He · submitted that as: for Stand 211 . , i . Nako nd e) vi llage Headman Mwen itindi gave the land to i~e 2nd plaintiff in 1973. They ·put up a slab and storage tank in 1975. r,n years later, . C}~n 1985) t hey acquired the former Zambia-Tan·zania Roa~ Services : yard ~✓ i th two more storage tanks. The certificate was only\ issued twenty I years later in 199 3. Co unsel referred to th e case of Zambia Telecommunic~ti~ns Company ' i Limite d v V~l sons Pharma Zambia( 2) and submitted that w~en cons:der irg l l tl1e que stic:, of adverse possess ion with physical dev'.elopments, the relevant period .is that prior to the issuance of the [certificate . of i1 l title. As soon as there is notice that the IaAd is I ~ . J >10uld be raised with the Commissioner of Lands, en~urnbered) issue l ~- I T~e unchallenged evidence in his case is that t he pieces of land ar;e still ·under · l customary tenu re under Chieftainess Nawaitwika. ' Fi nally) c0"ns e l submitted that the procedure for c,onverting . land { under cu st omary into leasehold te nure was not complied ~ith. He argued \ f that the pla intiff's int erest in Stands 218 and 211, res~ectively, are ' I I . . J35 ~e tt er th a n thos e of the 1 st a nd 3rd defendants. He urged !the court to t 3 nce l th s two ce r tifi c at es of title . ... JJbmi tt in g on behalf of th e 1 st defendant) counsel pointeq out the 1 st ' ~-Fe ndant 1 s posit i o n a ga in st t he 1 st plaintiff is that _ ~he land on .. iriic h former Mobil Oil Zamb ia Limited filing station is ~as · acquired ~ - the s tate and i s no longer c ustomary land. It is also his . position ',at he purcha sed i t he f il i ng station including the buildings 1 I tan ks 3'ld pumps. .: unsel ref e r red t 0 tne case of Galunia Farms Limited : v National 1i lling Compa ny Limi t ed and Anot her (3) and submitted that:th~ onus is ' ,r; t"le p lai~:::..::.;: t c pr ove his c laims and where he fails td do so, the • 'r~ fa i lu :~e :rf tne defenda nt's defence does , ~not enti:t1e him .to s 1J bmi tt ed t hat the pl aintiffs' claims that the ~ land is· \· • I ; j-:: ~ cu sto::;ary te nure has not been proved. The_ land was iacquired by · ~ 5tate an~ a n advertiseme nt wa s placed in the newspape~. There is I -., i.d e nce f,~om Owl, t l1e former Managing Director of ~Mobil Oil, 0ppo rt i ng t hat fa ct . He also t est i fied that Mobil Oil leas;ed the land r ' no· one r ai sed a ny c l aim on it . l \ ' ' / J36 It Was also submitted that the 1st ~efengant his produce~ the rel~vant : I J.ocuments- relating to the land when the . plaintiff's have provided I ~on e. Mcist of the documents presented by the plaintiffs ~he~e prepared subsequent to the 1 st defendant obtaining the certificate of title . . , \ h i e re is no documentary proof that Mobil Oil hadi a business . 1 "'elationship wit h the 1 st plaintiff that related to the .~isputed land. • ·he plainti-ff has not provided proof that other than the 1st ·1e·Fend a nt 1 s f ilin g st ation 1 there was another fill;i.ng :to . which h:j.s (the 1 st defendant 1 s doc.uments) 1 -19 c uments I Sect ion 33 of the La_nds and Deeds Registry Act and the ;case o-F Anti relate. :• He: re-ferred . to . . I ;or~ruption Commission v Barnet Development Corporation Li~ited (4) and - ubmitted that a certi f~.c a te of title can only be chalJ:_•enged on the · . I I ' grc ~nds se~ ou t i n Section 34 of the Act. I . . I. \ \ .. -:;~ er; C:~L,.·1 sel submitted that according to the Halsbury' s laws of · England 4~~- Edition Vol. 36, paragraph 36 (2), a party alleging fraud " \ us: set out l • the particulars of such fraud . in thei~ claim. The -1 a i ntiffs have not set out any particulars -of fra~d in their pleadings. In factJ Dw3 1 s evidence is that all the docum~nts required ,r the pr ocessing of the ce rtificate of title were subm~tted and the ~ defe 9d~nt can not be faulted for the Commissioner of L~nds' failure . . . to e nsure th · •-_ the chief's consent was obtained. J37 Co un s e l als o s ubmitted that the document at page 6 of t he l rt I . De fe nci ant J s Bundle of Do cuments and the evidence of_ Dwl : conf irms t hat .what Mob il Oil so ld to the 1 rt def endant . was the f illing ; station . ,·r The pla intiffs have f ail ed to call the former Managing Di~~ctor to prove . :that what wa s sold was only the pumps and tanks thou~h ·t hey · ha d a ctter purporting that it was the case. He referred to th e evidence of, Owl t hat the fuel tanks were f ixed to ~he ground and rjferred to t he Lat i n Ma xim ~quic quid pl antat ur solo solo cedit" . Finally Coun sel submitted that the action is statut;e barred . ' He r !:::er r ed t o the c a se o f United Engineering Group Limi~ed v Mack son Vunsa lu anq ot hers ( 5 ) and s ubmitted that statute ba r :can be r ais ed I I E :i : h er as a pre l im.: nary is sue or as a defence. He re:ferred to the , • ... : - (s · : f _ ~··d Oe11 ning in t he case of Mitchell. v Harris Engineering ( 6) that th e statute imposes a ' ! t " • I time ~limit on the l l .c.c cordin g to Se ction ·- 4. (3) Limitation of Actions is by virtue · of Section 2 :o/ \he i British ·· Acts · f\ct · which ! app licable t o Zambia Exte nsion r : t , thi~ act i on should have been commenced w1t hin 12 yea r s From th ~ .da te when the cause of action accrued. That pe~iod runs f r om i the time wh en advers e pos s ession was taken. The 1rt defendant ·f irst ' . ' J38 t ook poss ession in 1985 and in 1991 he bought ·the premi$es and took ( ; · ;ep s to obtain title deeds. This action was commenced ih 2009 which ~ "1 s 23 year's later. 1 Junsel also commented on the plaintiff's reference to the cases of ~vi d ~zoona Lumayendo and Another v Chief Chamuka (1! a·nd Zambia ; I Telecommunications v Va lsons Pharma Limited (2). He submitted that 1ey have been a pplied i n a mi sleading way. He submi ttep that there ' 3nnot be adverse poss ession of land that is the ~~bject of a I c ertificatet~f tit le. s rega rds the claim f -J r me sne profits, he referred i to !the cases of Bram:ell v Bramwell ( 7 ) and GF Construction {1976) Lim~ted v Rudnap :~- -bi a ) Li11i t ed Arthur . (8) and submitted that since there was no . : : ' . " ' I c,-:1 te nant r e lationshi p between the plaintiff'. and the 1 st . ;~ :2rd2~t , the plaintiffs ca nnot claim mesne profits. Further, a claim ' or· rnesne profits is based·, .on the law of torts and going: by Section 2 I : . ·!1) ( 9) of '1e ·Limitation of Actions Act should be claimed within · six I ( 6) years. The act ion i n this matter was commenced in 2,009 which is -el l beyond the 6 years , He urged the court to d~sIT)i_ss ,=he action i11, I · ota l. • \ . . Submitting on behalf of the 3~ defendant, counsel pointed out that it J39 5 not disputed that: the 1 st plaintiff's father oper:-~ted the filing i st ation at Nakonde having acquired the land from the; lo~al headman; nd the 2 plaintiff once operat ed from Stand 211 Nakon·d~; that the. 1 st . . defendant wa s the registered holder of Stand 1236/M N~konde and that ./ acquired a certificate of title . for Stand 218 .· N~kond~ and w.,· l · said certificate was cancelled by the ·commissioner of ~ands; . . i tha~ the. and that the 3 rd defendant has a certific ate of title for Sta0d 211 Nakonde · which was l awfully issued by the 4 th defendant. He submitted that the 2nd plaintiff is not entitled :to any of the reliefs they are seeki ng becaus e the 3~ defendant ~cquired th~ir certif icate of title after fol lowing the procedure . pr~scribed by the I , 1~~ - H2 ~J~G it ted.that a certifi cate of title can only ~e cancelled i~· ~-- cbtair,ed fraudul ent ly or by mistake. There is no evideric~ that the I ,-, deferce,,c acted fravdule ntly or that the certificat~ was issued by I "' ( :r.i stake . ' I Counsel referred to Section 33 of the Lands and Deeds R~gistry Act and ( the case of Anti Corruption Commission · v Barne:t Development l Co!'por~rf:,to n Limited ( 4) and submitted that the 3rd defenf ant being the · ho lder of a certi f-icate of title, has the absolute right ito use of I I J39 Submitting on behalf of the 3rd defendant, counsel pointed out that it i s not disputed that: the 1 st plaintiff's father oper:-~ted the filing st ation at Nakonde having acquired the land from the ; lo~al headman; nd the 2 plaintiff once operated from Stand 211 Nakon·d~; that the. 1 st defe nd ant wa s the registered holder of Stand 1236/M N~konde and that 1~ ,, acquired a certificate of title . for Stand 218 · Nakond~ and tha~ the. .. . sa i d certificate was cance ll ed by the ·commissioner of ~ands; and that the 3 rd de.fend ant has a certificate of title for Stahd 211 Nakonde · which was l awfully issued by the 4th defendant. I l He submitted th at th e 2nd plaintiff is not entitled :to any of the reliefs they ar e seeki ng becaus e the 3~ defendant ~cquired th~ir certificate of t it le after fo llowing the procedure . pr~scribed by the I , !~~ - ~ ~ s~ ~r itt ed .tha t a certificate of title can only ~e cancelled i~· 'Ii·_ cbt a i r,ed f taudulently or by mistake. There is no evideric\; that the I 3-= c1efe r.0i; ,~ l acted fraudule ntly or that the certificat~ was issued b·y " I ( _:;i:i.sta ke. ' Counsel referred to Section 33 of the Lands and Deeds R~gistry Act and l I l Co r'por flt•~.on Limited ( 4) and submitted that 'the id defen~ant being the case of Anti Corruption Commission · v Barnet ' ! ; Development the . · ho lder of a certi f-icate of title , has the absolute right to use of I I . ! : prayer th at the tertific ate be cancelled cannot stand be~ause there is J41 no eviden ce of fraud. As regards the cla im that the 3rd defendant yields vacant'. possession to the 2nd plainti ff , Counsel referred to the case of Khaiid Mohamend V ,ttorney General (9) and Wilson Masuso Zulu v Avondale ~ousing Project 1 Limited (10) and submitted that t~e pl~intiff has faile~ tb establi~h . the existence of a lease between Sable Transport and the;3 rd defendant. l r h e c laim must t herefo re fai l. Further, counsel . referr~d to the case of My l<inda Town Limited v Soll (11) and submitted that claim must defendant is i l l egally occupying the land or has committ~d any breach. 1 al so f ail because th e 2nd plaintiff has failed to sho~ that the 3 ro l l c cming t o t he cl aim fo r mesne profits, he submitted thai since the 3~ t ~ fendant is the holder of the certificate .of title for . Stand 211 l ·Na '.<onde, l al ack's Law Dictiohary -6th \ Edition where it is deferred a,. t hey ♦ I ' cannot be required to pay mesne profits. ~e referred to . "Mesne profits r efer -.to the value of use or occupation of arid during time it was he ld by one in wrongfu~ possession and 1.s commonly measured in terms of rent · or profits", . LRe ference was also made to the cases of Rosemary Phiri ~adaza v Awadh 1 Keren ~o'l een ( 12) and Peter Militis v Wilson Kafuko Chiwala (13) and \ ' ~ submitted that the plaintiff has failed to show that the 3 rd defendant · L I i.. J42 was in · ll egal possession. He submitt~d that all the qlaims must fail a nd the action must be dismissed with costs. I am indebted to counsel for their submissions and I have ta ken them i nto account in arriving at my decision. ~ From the ev idence before me, I find that it is commori cause and not . . . disp uted t hat the Commissione r of Lands issued certi fie ates of title · t o the 1 st and 3r d defe ndants for Stands 218 and 2111 respectively, -following recornmP.nda ti ons from the 2nd defendant. The ~certificate of' ' t itle f or the 15 : defendan t (fo r Stand 218) was issued on 10"r. J t; ne ' 2 302 ,· 1-,hi le t ha ~ for the 3rd defendant was issued on : 27 t h May 1993. I t to the 1 st defenda nt being issued the said certificate of title, .!.•~ ye ars · l e a se v1as is sued to him on the b.asis of ;an . un-surveyed .... --- " ' -. I . . c5, c: r.l, ' ;: - ! : Fu rther, it is not disput e t hat on Stand 218 Nakond~, I there is a 1 f iling station which is o~w bei~g operated by SG~ Invesfments Limited I but was f o rmerly run as a Mobil Oil filing station. It ~s agreed that in 19~1 the 1s t defendant purchased the fuel storage tank~ on the stand f ,~am Mobi_l Oi.l at Kl, 200 J 000 . It is also not disputed that in 2002, he i I was in · ll i egal possession. He submitted that all the qlaims must fail J42 I a nd the action must be dismissed with costs. 1 am in de bted to counsel for their submissions and I have ta ken them i nto account in arriving at my decision. ~ Fram the evidence before me, I find that it is commo~ cause and not . . d isputed t hat the Commissione r of Lands issued certificates of title · to the 1 st and 3rd defend ants for Stands 218 and 2111 respectively, fo llowing rec ommP.ndations from the 2nd defendant. The ~certificate o_f" title f or the 1 st def endant ( for Stand 218) was issued on 10t h J \..: ne ' ! 2~02 ; 1•Jr1i le th a ~ for the 3 rd defendant was issued on : 2 7 th May 1993. c- i o r to the 1 st defenda nt being issued the said certificate of title, .:: .!.'- yea:-s l ease v1as issued t o him on the oasis of ;an . un -s urveyed " • I ' ; Fu r~ther, it is not dispute t hat on Stand 218 Nakond~, I there is a ;fi l ing st ation which is now bei~g operated by SG~ Invesfments Limited I but was f o rmerly r un as a Mobil Oil filing station. It ~s ag reed that in 1991 the 1 s t defendant pu r c hased the fuel storage tank2 on the stand : I f r o m Mob\i_l Oi l at Kl, 200,000 . It is also not disputed that in 2002, he i J44 ~wned ·F1· 111·ng t s at1on wit h Mobil Oil being · f the ' P,rovider o · h t e I equ ipment ~nd l ubri ca nt s . Th is evidence is supported by Pw3 who · is t he cur r ent Headma n Hea dman Mweni t i ndi at t he ·Mweni ti ndi . His evidence father was t ime and gave the land tb ! the plairiti ff) s is that :his· t fa th e r. Pw3 admitt ed t hat he has no documentary ; proof of the tra nsaction a nd said this i s because the land was 7under cu stomary I . ten~ r e and they were not givi ng docum~nts after giving ~out land at the time. Jn the other hand, the 1s t defendant)s position is that ; he bought Sta rd . 218 from Mobil Oi l in 1991. Though he paid 1(1)200,000~ no contract of sa le o r assignment was executed. He was given a ~etter which ~e ' pr es ent ed at the · 4th defendant to obtain his certifica~e of title . His ♦ I ~ evid en ce is supported by Owl, a f ormer manager ,-at :Mobil Oil. His - -~ ·: est.i mony \•1as tha t Mobil Oil leased the land from t~e 4 t h ! ~- l ~ defenda nt ' I ! a f~er re s ponding ! -f illing sta.tion which t hey subs equently sold to the 1st. ~efendant. to a n advert isement in 1970. They !then built the ' I l I The adve rti sement that th e 1st defendant says .the Commis:sioner of Lands placed in 1970 is at pa ge 2 of the 1st Defendant )s Bundl~ of Doc uments. It is , ·qated 19th I ' . Febr ua r y 1970 a nd titled "APPLICATIO~ FOR A SERVICE I STATION AND GARAGE SITE AT NAKONDE". It describes the land as " ...... 1236M ' . ' I , 30, 000 square feet· 1·n extent) at Nakonde Isoka f·o· r J45 · a: per10 · d of 99 1 ea rs ') TI ...... 1e 1st d h efe ndant also referred to the letter at : page 3 of t e · f ~aine bundle of document.s dated 23 rd May 1973 and titled'. "Re: Nakonde .>etroleum Installation'). The first paragraph, in p·art, reads as :allows: "Atta ched to t/J is Letter you wi.l l fi.nd a diagram of Nahonde w~ich was supplied by th e Regiona l · planning office) Kasama on this diagram we have circled the ' t . area c( the ground 1.,,e wish to Lease which will be just for pr~vid-inq a service ' sta t ion faciL ity to th e pub L ic and the balance of the area ...... /': . in the last paragiaphJ which is at page 4 of the bundle !of documents, : ~e lette r reads JS f ollows: "In view of the fact that the volume of heavy traffic has increased considerab ly foL Lowing the border closure we are anxious t:o provide these f aci lities as soon as possib le and in this regard would appre;ciate your early atten tion." ,;....e diagr a:;1 "NAK/2/DP" , v-Jhich Dwl referred to as bein$ the diagram f o:- C. tand 218 before it was surveyed, , was attached to this i , ., I , U . ter. Fi nally, he referred · to the letter from Mobil Oil . to the 4 th ,.:., 2 ~endant dated 25 th Sept ember 1991. The relevant parts :Of the letter- ... :-ea d as fol 10\\IS: "RE : -TRANSFER OF NAKONDE FiLLING STATION - MR , JMCC SINKALA - to confirm the We 111ish transfer of Filling Station plant: and facil it'tes s it~ated an Plot No . NAK/2/ DP Nakonde to Mr. JMCC 5inhala with! effect from 25th Septemi?'?", 1991. Thi s i s f ollowing the purchase of the stor~ge tanks by Mr. Si nhala from Mobil Oil. ' \ . . J46 The propriety consists of the following:- (a) (b) (c) Administration office 5 storage tanks and ancillary Forecourt and adjoining part We wouLd be grateful for any assistance rendered to ·Mt. Sinha la in the transfer of the said property." There is evidence from Dw3 that Stand L/1-236/M doe~ exist and it . Qbe longs to one Dickson Singoyi. Other· than the advertii.sement and the t wo letters I have just referred to, the 1st defendant ~as not provided a ny proof that Mobi l Oil applied for the land adverti~ed in the 1970 adve rti sement or that the 4 th defe ndant approved .the applic_atior , .. if i _t ·.-. 3 s made . The or l y evidence supporting his claim is t~e testimony of Cr.•11 tha t Mobil Oil applied for the land and their ~pplication was ~ ·: the 1S70 advertiseme nt, the Commissioner of Lands cl~arl1/1 indicated l . I :,a: Sta~: 1236M was up for lease as a filling station, i Th~s being the e::, se, if Mobil Oil was res ponding to .. that advert in their letter, ~t pa ges 3 a nd 4 of the Defendant's Bundle of Documents, t~ere would have been no need for them to indicate that the same pieqe of land was su itable for use as a filling station and ask the C:omm'issioner of La nd s tQ al low t hem l ea s e i t for that purpose. The tw~ pa_ragraphs _ -of the lett er that ha ve been reproduced do not suggest that :Mobil Oil was .. I • I f . J47 r espond i ng to the advertisement. They make no referenc~ to the advert • I · a 17 ci clearly indicate that Mobil Oil had identified a : piece of lan.d r that was :- ::.i.table for use as a ·filling station. . \ · Furt her J t he iand in the advertisement is described as: being ''30., 000 ' . . .. square f e et JJ which is equivalent ~o 0. 27870912 hectares~ y~t the s~-ze \~ f Stan d 218 is set out a s being 0. 9999 hectares in ~11 of the 1 st r de f end a nt Js do c ument s. Stand 218 is more than 3 times t~e size of the i r r ~hr eefol d i n si ze in 2002 . I r:x ol an ati on of hov1 t he size of land Mobil Oil leased in ~970 increased l and adv ert i sed by t he Commi s sioner of Lands in 1970 arid there is no ' F I ;- :, :1 :l. s: d e .:: e r.ja ,; t ' s pr od uc ed a print out for Stand · 218 is at page _9 of :i •Jr:d le c f do cumen ts . The first entry in the documents reads -as b}.: ·. i o•,,s · u ·- ... r : • "ENTRY NO, 1 DATE OF DOC 10-JUN-02 DATE OF REG, ~0-JUN 02 " • ., I Le ss or Lessee THE PRESIDENT OF ZAMBIA ' SINKALA JULIUS CHILIPAMWAO NATURE OF DOC STATE LEAS£ 14 YEARS FROM 01-JUN 029047 it i s t r ue that Stand 218 is the land was leased out : to Mobil Oil rr 1970) '0.ne \·JO Uld have exp e cted that the first entry in the prir,t ·out \ ' ,9999 HECTORS" ARE)J i .• ~ uld have indicated Mobil Oil as lessee. Dw3's ~vidence., ~hich I r r J48 ac cept) ·is that had t l1e land been ea~lier leased outt to Mobil OilJ · th ey would have been giv e n a 14 years lease even if t~e land was not s urveyed· In fact 1 the 14 years lease . referred to in ithis entry was ! gi Ven t o the 1 st defendant before the land was surveyed. · Con s e que nt l y) it i s my f inding Stand 218 and Stand. ~23ij/M; adventised . by the 4 th defendant i n t he 1970) sJ is · not the . . same pi~ce . of land_. . I Q · a lso f i nd ·1:hat t hough Mob i l Oil applied for a· piece of !land to use as I . a filin g sta tion, t he ir appl ication in the letter at pa~es 3 a,d 4 of th e Def end a nt 's Bundl e of Documents) did not relat~ tp tbe land :adve rt i s ed t o as 1236/M . Though I find that Mobil Oil a~plied for land to us e a s a fi lli ng st at i on in their letter dated 23rd ~ay ·1973, there ~- ~ no evidC?nc e th;) t the ap pl ic at ion was approved. This _tJ;eing the caseJ ·.:~ find that the 1 s t def enda nt a nd Owl J s evidenc.e_ that Mo~il · Oil 1e'.ased t't · e land vrl,ic h is now St a nd 218 and built the filling station that . is ., .. I ' • o n it after res po nd i ng t o t he 4 th defendant's advertis:ementJ is not ~r ue and i s without ba s i s :~- I dismiss it . ' .r will now deal wit h t he 1st defendant) s letter of s~le dated 25 th i epternbe r 1991 . It· wa s hi s evidence that after ·paying ~obil OilJ he ' ' t oo k t h~. l ett e r t o t he 4 t h defendant who issued . ~im with the . ertif i cate of title afte r acc e pting the letter. Dw3's evidence) which ]49. a c cept, is that l etters have never been used to c~ange entri es ~lating to title at t he Lands Registry. Only ' · as~1gnments and · contra cts of sale a r e used fo r that purpose . i n this ca s e , it is not the letter from Mobil Oil that ' ~nab led t hr- 1 st def endant to obt ain the certificate of !title . Dw3 ' s ~ ~dence, which I accept, is t hat the 1 st ' defendant was is~ue9 with the ert i ficate of title after he submitted an application f~r land which _ . ·:1a s supported by a recommendation from the 2nd defend~nt . Had the ~tter been used a nd t he c l aim t hat Mobil Oil was the p~evious t itle r :ilder, th e 1 st e nt"ry i n t he pri nt out would have made \refere nce to i·\obil Oil' s pr io r m,me rs hip of t he land and the fact . that it w2 s ~signed t o the 1 s t defendant. 1£.t -eh o, .. ,3 did not prese nt I ~ I ~f e nd ant prepared to enable the 1 st defendant obtain the certificate t he f o r ms or recommendation ;that tt1e 2nd & , .. l • ' I accepT hi s ev t9ence and find that · the 1 st Qefendant was I being deceitful when he cl ai med that he used the letter "t';o obtain the l :rtifi cate of t i t!~. I t is a notorious fact that letter~ have never \· ·en used to effect cha nges in record dealing with title .:at the lands f?gi stry ( '{n any case, a s pr ev i ously notedJ the print out ~ndicates JS0 is the initial recipient of the land and it was not 9 nsferred to him after a sale . ~ve n though I have found that contrary to his testimony ·ih court, the l : defendant 1 s did not use the letter dated 2sth Septe~ber. 1991 to . ' J htain the.~ertificate of title for Stand 218, I am going to comment (on ✓.. it because his case is anchored on it. It was his evidence that ; c 'ter buying the filling station, Mobil Oil gave him th~ letter and 1 id not execute a contract be cause they said it wasn't necessary. The : :2-::ter indicates that .::01101,,Jing his purchase of fuel tanks- the oil '. ·mpany "t ran sferred" the fillin g station and other facil ~ties to hi,. T~e letter is clear and unambiguous, it indicates th~t what t he uefenda nt bought were the fuel ta nks. After he bought th~ fuel tanks, i · \ey gave~, , the fi lling station and the other ~acilitiesion it. C 1 f the 1 st defendant really bought the filling station I · see no reason i . ~Y Mobi 1 Oil could have not simply said they had sold him the filling c:~a tion and indicated the .-facili ties on it. Is it _a coi1cidence that ' ' / ~~bi l Oil found i t unnec es sary to sign a contract for the ~ale? orning t -b \ the status of Stands 218 and 211 before the ce;ti f icates of .ltle where issued to the 1st and 3rd defendants respectiveiy, Dw3's . "'- . ~ - . -'.~(,. .. JSl ev idence was that f 1 o lowing complaints over the two plqts and other I . e lated plots · 1n the ·area) the Ministry of Lands Kasama· Regional "Jfic e physically inspected the land. They found that ;the_ land was und er customary tenure prior to the two certificates ·being issued. The ~t · defend~ct)s position is that Stand 218 was state land: and formerly . ! i I 2 ferred to as 1236M while the 3rd defendant's position !is . that they t/ conducted a due diligence search at the time they app~ied for the . 3nd . The re was no indication during the search that '.the· land was nder customary tenure at the time. ~rst of all, I have tak en i nto account submissions on ~ehalf of tr;e st and 3r d . defendants t hat t he plaintiffs have not brou~ht . any proof t hat the l ~~d was under customa ry tenure. Land under cust~mary tenure 1 i 7like that under leasehold, generally has ~o docume~tation . That Ing the case, the testimony · of a headman or chief, dep~ndf~g on the - ci r-curnstances , may be sufficient. In this case, there is c3ddi tional ' ; idence f rorn Dw3 that their regional office went on tHe grou1d and ~p und that the land fell · 1,.mder customary tenure. have a11~n-1dy found that Stand 218 is not the same as i the property I ~ferred: 'to as 1236M in the 1970' s. The 1 st defendant cannot therefore . use th e 1970's advertisement to support his claim that Stahd 218 was " . I . r r r -- r · absence st JS2 at~ l a nd at the time he applied for his certificate df title. In the of any evidence contradicting Dw3's !evidence that i nvestig ati ons esta blis hed that prior to the certificat~s of title for the 1 st pl aintif f and both pieces of land where under r: both Sta nd 218 and 211 being issued, r · c ustomary tenure , I accept his evidence. His . evidence fS supported by r th at of Pwl , tf/ ustomary r , f e ll under customary tenure prior to the certificates of title being r f ,T'he La nd ( Conversion) Regulations, ~ of· the Lands find that both Starid 218 and 211 issued by the 4 th defendant. t enur e .· Consequently , (..:ustomary Tenure) land fell under that the Pw4 . I J. deal with t he pro cedure for converting land urider cust oma ry ~e nure into lease hold tenure . Th ey provide as follows: r . I~ I I I i ! I i,i ·r i Ii 2. (l) A per son- ( o) (b) w.·,o has a right to the use and occupati.on of Lan'f' un~r customary tenure; or " using and oc cupy ing settl i.ng there fo r a per-f.od. of not less than five years; I land in a customary area wi.th : the • i.ntenti.on of may app ly, t o · t he chi ef of the area where the Land is ; s i tuated, in Form I as se t out in the Schedule, for the conversion of s qch ho l di ng into a Leasehold tenµr e. · ( 2) The Chi.ef shall consider the appli.cati.on and shall gi ve or ref.use consent • . (3)Nhere the Chi ef r efuses consent, he shall communicate suet) refu's aL t o the appl i cant and t he Commi ssioner of Lands stating the reas~ns fo~ such r efusal i.n \ Form II as s et out i.n th e Schedule, (4 ) Where the Chief consents to the application, he shall confir.m, in Form II as JS3 ; s et out in the Schedule. : •:01 ( a) that the applicant has a right to the use and occupatjon af that Lanaj ( b) the period of time that the applicant has been holding that the Land under customary tenure; ~nd (c) that the applicant is not infringing on any other per~on's rightsj and s ha LL refer t he Form to the Council in whose area the ; Land that is to be converted is situated. (1) Th e Counc i. L shall, after receiving the Form referrE;d to in sub-r,egulation 3 . (4 ) of regulation 2, and before making a recommendation to the commissioner of Lands, cons ider 1. Jhet /J er or not there is a conflict between cu~tomary Law of that ar ea and the ac t . ! (2) I f the council i s s at i s fied that there is no conflict between thk customary Lm-1 of t hat · area and t he Act, commiss ione.- of Land s in Form III as set out in the Schedule . (3) The Commissioner of Lands shall accept. or refuse to accept the r ,· · •:mendation, and s hall inform the applicant accordingly. the counci. L shall make a rec-pmmendotion to tf>e· 4. ( 1) Nhere a co uncil considers that it will be in the interests of th~ community to conver t o particu l ar parcel of Land, held under customary tenu~e into a Leasehold tenure, the council shall, in consultation with the Chief in whose area the Land to he convert ed i s s i tuated, apply to the Commissioner of Lands for :conversion. : (2) The ~ounci. L shall , before making the appL1.cat1.on referred to i.n ;sub-, regul ation ( 1 ),- (a) (b) ascertain any f ami ly or communaL interests or rights r~lat1ng to the parcel of Land to be converted; and specify any interes t s or rights subjects 't~ which a gr~nt of Leasehold tenure will be mode. ' follows , t hat both t !1e 1 st defendant and 3rd defendan;t should have \t [ t I '} Ought t he conse nt of Chi e ft a iness 'Nawaitwika to covert the parcels. I I t o .. l e aseh6ld tenure. It is only then 1 that the 2nd from cu s t omary ' ! !ef endantJ.s could hav.e approved and forwarded their applications to --:,e 4 t h defe nda nt. i ' ' ' . 1 •1 • J54 Th · e 1 st d ef e ndant did not lead any .eyidence suggesting tliat - he obt~ined · r 'or even sought t he ch ief ' s cons ent before applying for ~h e· certificate ~ f tit l e. In fact, his ev id enc e is that _ he uied the l et~e r ·from Mobil Oil to ob~La1· n 1·t. I have alre ady found that the certif~cate of title :~-. Ja s not i ss ued on the basis of that letter but documen-ts from the 2 nd ~defendant. There is evidence f rom Dw3 that the 4 th defen~ant received a i -► ·recomme ndit i on let ter a nd a~plication' form for the · 2nd ' land; from ! ·defendant. The 4 th defe ndant was made to believe that ~ Stand 218 was · state land and t hat is why the certificate was issued eiven though the · i ch ief ' s con sent to ad not been obtai ned. In the fa·ce of tHis evidence, : '. I: !f ind ·tha t t he 1 s t defenda nt did not obtain the chief's :consent before ·th e land that is novJ Stand 21 8 wa s converted from customary tenure to le a s ehol d t enu r e. t 1 t he case of Stand 211, ·the 3rd defendant~ s position i s that the ~ I co r r ect procedure was followed when they obtained the ;certificate of ' ~ti t l e. The 3~ d~f ~nda nt ' s, dev~lopment committee sat and !ap~roved their· . I l i . 1ap plicat ion which was end?rsed by a full council meeting. He referred I to . t he documen t s at pa ge s 1, 5, 12, 16, 32 and 36 of the 3rd iDe fe nd ant' s Bundl e of Document s as being documents tha:t set out the ~ st ~ps t8ey took to acquire th e land. I ; I I I 'j . I i I i : i . I I , I I I I I . i er, have already found that Stand 211 fell under customary; tenure before JSS the cert i f ' t . lea e of t1 tle was issued. Regulation 2 ( b) of The Land ( Customary T ) enure . (Conversion) Regulations, clearly pro~ides that the • · re spo~sibility of obtaining the chief's consent rests ~ni the applicant f or tit l e. In this case, - the 3~ defendant followed all ~he· procedures less obtaining the chief's consent. It cannot, in the circumstances be sa id that there was compliance with th~ regulations fo~ conversion of land under"' customary tenure to leasehold property. T~e -requireme·nt that the chief's con se nt is obtained before land u0der customary te nure is co nverted to lea~ehold land is mandatory. It is my findi ng th at the 3rd defendant did not co~ply w:;. th -:: he pr--ocedure set out for converti ng the -land in Stand 211 ;into leasehold ·property. The fact they acted in good faith does ·n:ot help their i (vituation because t he 2nd defendant had no power to : recommend the . ·" \ conversion of land to which t hey had no title as title ;to 'the land' in ' ' , issue was vested in Chieftai ness Nawaitwika. After cc ~~idering all the evidence before me, ' I accept , the 1st plaintiff's evidence that the filling station was built :and run by his f ath e~.1. \ His evidence is supported by that of Pw2 an:c:l Pw3. It was submitted that the 1st plaintiff has failed to provide a~y documentary • )56 :J,oo-f of tit l e t o lan d . It is a notorious fact and I . t ake judicial ,otic e th at pe r s o ns who live or have real property on ~ustoma r y la~d do not or-,Ji narily have documents of title. It therefore ; does not come 2S a surpri s e th at the 1s t plaintiff and Pw3 have no doqu menta r y proof i -:hat t he late Duncan Simb ul e wa s _given the land_., o~ . . whi~h the f illi □ g . sta tion s it s . Even i f the r e is no evidence that ther:e was a nother . ~ 1obil Oi l fi l ing statio n to wh ich the 1st defend~nts doduments relat e) i I fi nd t hat he ha s failed t o prove that he obtained tit~e by vi r tue of ·the docu ment s . ~urt he r , even i f t he 1 st plaint i f f denied it) I believ[e that t he 1 s t ' de fendan t lea s ed t he fil ling st at i on from either him or jmembe rs of his ! fa mily f ollowing t he demise of th is father. This must !lave bee n _ 1 980 a nd 1 983. He ope r at ed the f i l ling station , under th e Mobil Oil I ' \, ~e al e r s hi p until t he t a nk s were sold to hi m in 1991. " ' I r .will n91,, deal wi th the -su bmission on behalf of the 1 st : defendant that ,' .., ' the 1 st pla i ntiff J s claims aga i nst the 1 st d~fendant a~e time barred be caus e t he action wa s commenced 23 years after the 1st !defenda rt t ook. I ad vers e poss es sion i n 1 985 and subsequently purchased ~he _pr operty in 1 9 91. 1 C'Qun s el submi t t ed that Section 4(3) of tbe L~mi tation< Act., pr ovid es tha t such a claim must be filed with 12 years of the cause of . ·•· : ,, .7t .. I I I ::iction arising. As I pubmitted that t he Limitation I _;. Ji thin 6 years of the l :- iled afte r 23 years. / J57 the claim for me·sne prqfi ts, it was' rega rds Section 2(1)(9) of the Limitation Act, S~ction 4(3) of Act ; · requires that the claim should have .been filed cause of action arising but it (was similarly I , 2c tion 4( 3~; of the Limitation Act, provldes that: "No a, · ; ?n shal L be brought by any other person to recove11 laod after the expirat i on of 12 years from the date on which the right of ~ction accrued to -. him or) if it is first accrued to some pers'on through whom he'. claims~ to that person : ,, :·fi e 1 st defendant J s evi dence is that he started operati~ the filling ,; tatio n i n 1985 and that h e p aid Mobil Oil for the fuel itanl< s in 19 9: 1s uncont es t ed and I accept it. However, I have found '. t hat the ' I :,2-fend ant obt ained hi s certif icate of title for Stand 2i8 Nakoride by· " 'I ... ' • . • t t .. " .;·rt ue of ~ ·· .. · :~presentations made by the 2nd defendant an~ not on the n a s i s of _the _ 1 991 Mobil Oil l etter. There 1s no evidence; before me of ' ·11e~ th e 1 s t defendant went to the 2nd defendant and obtained their : j .. , ·,"> ~pp~oval or recommendation f or him to obtain the certi fif ate of title >u t ~ the ent ry in the print out shows that he obtained 1his 14 years ' ea s e in June 2002. ' I : ' 1~ f ]58 ·! is being the case) I find that the cause of action ac~rued 011 10t h l l. he 200_2 when the 1 st d ( ~85 or 1991. This being the case) I find that the action is not time e~endant obtained the 14 years ea~e an t no · 1n · ' d :a red becau se the writ was filed within 12 years . from Jurie!2002, I I I : : ; (:1 ·1: t he case of the claim f or mesne profits, it was s~bmitted that '(dtion 2(1)(9) of the Limitation Act, Section 4(3) of the Limitation ~- ~ tJ requires that the claim should have been ·filed . wit~in 6 years. -·;, e proposi t i o n is cor rec t and it follows that only claims for the I 1:· -.: :--i 0d bef ore 1996 are time bared . Mesne profits for th~ period 1996 i .. ,. ;4" ~· I ~-d~te ca n be claimed. .:.s I concll· ·--~ , I will now deal with the plaintiffs' cl~ims as they I fve been set out in the writ . The first claim QY the l st !plaintiff is l the 15 : defendant to yi el d· vaca nt possession of the land kiven to ' l l ate Dunca n Simbule by Chieftai ness Nawaitwika which: is now more I i I - ' less Stand 211 Nakonde. He also seeks a declaration ! that he the { . ! owner of th~t lan~. :ib~} ction :f ·ov ides/ \t1at: of Section 34 of the Lands arid Deeds ~egistry Act I I "No action for possession, or other action for the recovery of .~ny_ Land, shall lie or be sustained against the Registered Proprietor holding a' Certificate of Title for the estate or interest in respect to which he is :registered) except in any of the following cases) that is to say: ,, J59 i . (a) (b) ( c) (d) (e) O • I • I t t t t o I J Cbr- urther Section 33 of the Lands and Deeds Registry Act P;rovides that: ''A Cert ificate of Tit le shall be conclusive as from the da~e of its issue and upon and after the issue thereof) notwithstanding the exis']:ence in any other person of any estate or interest) whether derived ·by grant :from the President t or otherwise) ivhich but fo r Ports III to VII might be ,held ;to be pararr:.aunt or · ·. ·: to have priority; '!. the Registered Proprietor of the Land : comprised in such i • ~ Ce rtifi cote shal L) except in case of fraud, hold the same s~bje c t only to siJc,, encumbrances , Liens, es tates or interests as may be shown by such Certificate of Title and any encumbrances, Liens) estates or interest's; created after · the issue of such Certificate as may be notified on the fol ium of the Register re lating to such Land but absolutely free from all other e~cumbrances) Liens, estates or interests whats oever : , , (a ) (b) Except the estate or interest of a proprietor clai~ing the I same under a current prior Certificate of Title issued un~er the provisions land t of Parts III to Vllj and Except so far as regards the-. omission or misdescripti'.on of any right of 1-,ay or other .. easement created in or existing upon any lland; and . . . ' (c) Except so far as regards any portion of Land that qiay be erroneously · •eluded in the Certificate of Title, evidencing fhe title of such Registered Proprietor by wrong description of parcels :or of boundaries," ' \ i \ ..:n the case Anti Corruption Commission v Barnet: Development '.orporation Limited (4)J i t was held, inter alia, that: J60 "un·der Section 33 of the Lands and Deeds Registry Act, a cert~fic.ate of title • 1.5 conclusive evidence of ownership of Land by ·a holder of· q certificare of ti tLe · Howev er ) under s·e ction 34 of the same Act, a -certific~t~ o/ title can be challenged and can ce lled for fraud or reasons for acqui.si. ti.on" impropriety in its · • • I . . Tt follo ws. that t he o rd er for possession sought ag~inst the 1 st ~fendant ~an only be granted ! :ha llenges the certifi cate of tit le and it is cancelled. if the 1st t • plaintiff; successfully , .. have found that t he 1 H defenda nt is in occupation of S;ta nd 218 th2t ,, . . , :J s ·; formerly owned by the 1 st plaintiff's father by_ ~ virtue of a . \ I ~ci~tificate of title is s ued to him following ; the 2°~ defendantJs ! ~~cdmmendat ion to th e 4 th defendant . Dw3's evidence was that there is •I i.'J evidence of fraud on t he part of the 1st defendant in ;the course of • • I • t -v. \ ' .. ~~ aining the certi_ficate. But he pointed I out that there ~as a mista ke JY the 4th defendant, s officers when they . issued h!im · with the ' though he had not obtained: the chief) s : -: :·t i fie ate of title even -~~t ; ~\;ent . They did · so becaus~ they believed the land was s~ate land. I ';·it ': ;;-1 '• :: ! ·. --~~ }· ~ccept Dw3' s ~:-.-~- . that evidence and it is my finding ' " \ there .was ( :fp , prj/et\y in the manner in which the certi fie ate of ti t;le was issued defendant . Though he was converting land under customary l ~-:-:-:~ \f.e 1 st I f I ,. • ~:i,. l · .. ·-,., r1 !"'"11 I ~-- J61 tenure to 1 h 1 ease o d tenure) he was allowed to do so even thoug , h h h d e a not complied with the mandatory requirement t~a~ he obtains · the chief) 5 cqnsent. There was also impropriety when ;_the· 4th defendant 'i accepted Lhe 2 nd defendant) s recommendation to c.onvert it in the .i: -1_ absence of the chief) s consent. Consequently, I find: that ever though there is no evidence of fraud, the 1st plaintiff : has success.fully • : I esta blished that there was impropriety in the manJ?er in which the ' • I c e rti fie ate ( No. 9047 ) f or Stand 218 Nakonde was isisued and I ord-er i t s cancellation. I also find that 1" plaintiff is the ~ightful owner t of the fi l ling s t at ion and the land it sits on - because it was built by I o rd e r t hat the 1 st defendant immediately vacates the t r,_ .hi s father n. .propert y . ·' - , .. I .,·i. ·• . ~i. ~ ,I ·His second claim is that the 1 st defendant immediate~y ·excavates and :,:· removes his fuel tanks from the · filling station. It\ is not disputed that it was on~e operated by Mobil Oil and that the 1 st defendant bought the fuel tanks and fuel - ~umps that are on it, ! Since the tanks ' ' i • ! . ! . . defendant should immediately exqwate them. ri. belong to hi m, tlie 1 st '.'.·:. :t rt. Opming to ·. -·\ .. ~ t. I ... t • ~ f encl~rnt - - · / °' · rkceived the third claim) the ·1st plaintiff seeks an or.der that the, 1 st accounts for and pays him all the rentaf income he has from SGC Investments Limited from 2004 to the ~ay _of final . . ' I - .• ' r J62 settlement for the use of the filling station. I have found that Mobil Jil where not the owners of the filling station, they therefore had no f: r .. right to sell it to the 1 st defendant. Neither did he have the right .to . : . . r egister the property i ~ his own name and lease it out. Consequently, t he 1 st defendant must account for and pay to the 1st p+aintiff all the :--entals he has received from SGS Investments Limite~ from 2004 to f . The ne:.:t laim is for an order that the 1 5·t defendant pays mesne :~of i ts ~ ~ him from 199 1 to the day of yielding vacan~ possession of -:·he lar,d. In the ca s e of Valentine Webster Chansa Kay{>pe v Attorney- ~ \ t .~ con sidered. The Supreme Court, at page 428, noted as. follows: · 0 ~neral (14 )) the situatio ns in which one is entitled tp mesne profits . r ; h 'ctS i,.: ., f~ l ~ -~ t ' . : -', i{•, Volume 27) of the 4th Edition., of Halsbury's Laws of Eng;Land. The passage profits) th e Learned trial judge relied on the p~ssage at ;,,aragraph 255., of the appellant should pay the : respa_npen t mesne in relation , to · the '.judgment appealed "We have considered reads as follows: th e arguments In deciding aga ins t. that . . . . . ! ,.· . ' • I ; : \ Ji , ' ' "Mesne ·profits. The landlord May, recover in an action for mesne profits the' damages w~ich he has suffered through being out of possessio~ of the Land, or if he can.' prove no · ac~ual damage caused by him by th~ defendant's trespass, the landlord May, recover as mesne profits the amount of the open market value of ' . the premises for the period of the defendant's wrongful qccupation . In. most cases the rent paid under any expired tenancy will be stron~ evidence as to the open market value. Me sne profits being a type of damages fof trespass can only be recovered in respect of the defendant's continued occupati:on after the expiry of his lega l right to occupy the premises. The landlord .is ndt limited to a . . I . . I l l l )63 claim for the profits which the defendant has' received fro~ th~ land, or thos~ which he himself has lost." We accept the foregoing as the correct Law on mesne p~ofits and on the evidence on record, 111e uphold the Learned trial judge's· finding of fact that the period 1st January, 2002, to 30th November, 20041 Legal right to occupy the respondent's house. We would add_ that he kept the respondent out of the house., without Lawful justification.; In the premises, the appellant had no the lm11 governing mesne profits states that he must pay th~ mesne profits to the respondent for his continued occupation of the house.> ·after the expiry of . ' his le:1,.,l ri ght to occupy i.t. The fact that he was granted d stay of execution. against evictfon, ~1hile he was pursuing his vain claim to p~rchase the house,) did not confer on him a Legal right to occupy it, free · bf ch~rge·." ! foll ows, t · It L qefa ul ting tena nts and any person who has been in ill~ga1 occupaticn the payment mesne profits is nbt limited t hat to. l of a - propert y can be r equ ired t o pay them. The 1st defendant's evidence l. :i::.i: that he has been running the filling station sine~ 1985 . It \.,,as -~ * L~·::kt;so his ev J.de ncc t hat he bought the property from Mob~l Oil ir 1991. ~ t nce Mobil Oil v1here not · the owners he had no right to' buy the ♦ [. ,pr1operty from th em and continue to occupy it up to; now. He must ' \ i ' i . ' L: thr refore pay mesne profits. t u Ho~ever, · since claims for mesne profits are based on thl 1aw of torts, I_ ~ ~ i ms for' t he period between -1991 and 1995 are time bared. Further,) 'r, :}j e ~:1-r::_eady ordered that he accounts and pays to the 15 I . 1( -. "'l I : :~- 1 1:. I ~ plainti-ff all '.:.1'!. : ,'6 ·. -~ .t' .1. . ;~ I t l ;. l ; l. re nta l s he has r e ceived from SGS Investments Limited -from 2004 to ' J64 I j a t e · He wi ll the r efore only be _required to pay 1 mesne -j profi ts ·f or th.e :::e , iod 1 9 96 to 200 3. The am·ount payabl_e is referredi to the Deputy ~egi stra r fo r ass es sment. t . :?ming to the 2 L(?: iat the certificate tit le for Stand l · ~ nd pl ai ntiff 's claims, the first relie;f they seek is 211 Nakonde be -&ancelled as it >.cls er r oneously obtained. Though there is no evidence 0f fraud on the ')~r t of the .3r d L,. ·-: ~·i'e man ner ti1e defenda nt, I have found that there was;impropriety i~ cert i f ie ate of title was obtained. The 2nd defer:idant I . t : ~~commend ed tha t ~hey be given th e certificate without fndicating that · . : :--, e l and 1tJJS und er customary te nure and being sati~fied that the · l co nse nt of Chi efta in e s s Nawaitwi ka had been obtained. L ~ ~-'.i'.e is a l so evi den ce from Pwl [ • l._:: f1 t he property which t hat part of Stand 218 : and Stand 211 I ~ \ t hey previously operated from : having either ' ' t::·Oi ined it ·';•am Chiefta,iness Nawaitwika or bought it from ·zambia . . ~ ~ :f j ania Road Services . . T~e ev i dence of the overl<!_P ·1n r,he prope rties LJ B ii··· confi'rmed by [?w3 . I ac cept th eir evidence and fin~ that the 2nd L l a' '. nt i ff ha s proved t hat t hey the owners of Stand 21:i and pa r t of L,:f ~ 2~1: I.>'.. ~2 nd 2i8 and I order the cancel lat ion of the certificat e of t itle for ' • • I I , } . ... ·- l i \ ' .i ·= Jming the ~ l.1: ~ope rty) I find that there is no evidence that the 3r~ defendant 'has claim that the 1 st and 3rd defendant to their vacates J65 :: e en in occupation of the property. However, there . is! evidence that ! t LL-.e 1 s I ~:-~ediat ely vacat2s the property. \..·.• defendant has been in occupation and I order ! t that he ' ~ :ii ng found that the 3rd defe ndant has 'not been in occuP,ation of Stand .. .. L.~-~,~ ~~ , ., the 2 nd piainti ff) s claim that they pay mesne prof\ts _and account :~f the proceeds of the lease of the 80,000 litres fuel ;tank to Sable ~ 1 . ·'. L }-.-~ nspo rt fails . But . . .... i ry· ,_; el ,., .... . I find that Pwl's evidence that the; 80>000 litres . t ank has been leaser to Sable Transport . is unco,ite~ted and l . I .: :ept it. There i s no evidence before me on who has lea,ed it out I , I ' - . . '·' .... ~ tf L'1 ~ .. -1~e the 1 st defendant has been i n occupation, I find ~hat he i s the L J- _. ·::ho has l.~a s ed it out . Consequently, I find ,that th~ 2nd plaintiff (e,_ o/r.t i tled to mesne profits f rom the 1 st defendant for t~e period from l 1,•.i,:~:2 to date·. I also order that he accounts for and pays to the 2nd l iiJntiff all the· rentals he has rec~ived from Sable Tra~sport for the i~ \i of th e fuel tank from 2002 to date. The assessment i of the mesne l.l,fts payable is referred to the Deputy Registrar . 11 t I ·i·,~·· :~_-· "d d f 11 l :,; ·:,} I' I ·. ::.~g fo.und that 3rd defendant acted in good faith and was misled by e· ·en n: · c w en they applied for Stand 211, I order ~that the 2°d ,., ~ d h ". I.! ' - )66 defe nciant replace the said property with another piJce of land of a 5 imilar size . and which can be used for the : same purpose for which · Sta nd 211 was acquired. Th e ·replacement will be at . t~e 3rd defendant) s . I cost. -~ ~ j ~J l. ... ,. Ji . . . I also award the 1 st and 2 nd plaintiffs interest on all mesne profits .~ and ren tal s payable by the 1 st defendant) at · the short term deposit ... :i"f-1. Li~: rat e f rom the date of the writ until full payment. f '.:cst s to the plaintiff s payable by the 1 st and 2nd def~ndants equally J L.l ::0 be agreed and i n default) to be taxed. De live ; _J i n. open c • crrt) at _., i 21rt _day of farch, 2016 i C. F. ... JUDGE ,. ' I • 1