Caphus Jikemba and Anthony Chipulu v Melvin David Brice and Solwezi Municipal Council (Appeal No. 127 of 2022) [2024] ZMCA 67 (23 February 2024)

.... IN THE COURT OF APPEAL OF ZAMBIA HOLDEN ATNDOLA ( Civil Jurisdiction) Appeal No. 127 of 2022 BETWEEN: CAPHUS JIKEMBA ANTHONY CHIPULU \ AND I st Appellant 2nd Appel !ant MELVIN DAVID BRICE SOLWEZI MUNICIPAL COUNCIL I st Respondent 2nd Respondent CORAM: Makungu, Sichinga and Sharpe-Phiri, JJA on 21 and 23 February 2024 For the Appellants: For the 1 st Respondent: Mr. C. Tafeni of Messers Suba, Tafeni & Associates For the 2nd Respondent: No appearance No appearance JUDGMENT SHARPE-PHIRI, JA, delivered the judgment of the Court Legislation referred to: I . The Court of Appeal Rules SI No. 75 of 2016 2. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia Cases referred to: I. Nora Mwaanga Kayoba and Vanzani Banda v Eunice Ngulube and Andera Ngu lube (20 03) ZR 132 2. Amchile Import & Export Limited and Others v Ian Chimanga Tawana Business Ventures and Another SCZ Appeal No. 43A/201 l . 3. Wilson Zulu v Avondale Housing Project (1982) ZR 172 4. Nkongo lo Farm Limited v Zambia National Commercial Bank Limited & Others SCZ No. 19 of 2007 5. Davy VGareet (1878) 7 CH D. 473 6. Anti-Corruption Commission v Barnet Development Corporation (2008) ZR. 69 Vo/ 1 7. James Mbewe and Potati Makunga (Suing/or and on behalf of the Small-Scale Industries Association of Chipata District) v Jam es Mwanza (20 12) Vol. 2 ZR 89 Page I 8. Justin Chansa v Lusaka City Council and Another (2007) ZR 256 Other Authorities 1. John McGhee, Snell 's Equity, 31s1 ed., Th ompson Reuters (Legal) Limited 2008 2. Hals bury 's Laws of England, 4'11 ed, Volume 36 1.0 INTRODUCTION 1.1 This case involves a land dispute and comes before us as an appeal against a decision made by Makubalo J of the High Court in Kitwe on 20 September 2021. By that judgment, the trial Judge found in favour of Melvin David Brice, the plaintiff therein in relation to a portion of land known as Stand No . 8399, Solwezi. 1.2 In the initial section ofthisjudgment, the parties will be identified by the titles used in the lower Court. 2.0 BACKGROUND 2.1 The plaintiff in the lower Court (now the 1 st respondent) commenced an action on 16 September 2015 in the Kitwe High Court against Caphus Jikemba, the defendant (now the 1 st appellant) by way of writ of summons and statement of claim . 2.2 In the accompanying statement of claim , the plaintiff asserted that he is a businessman and the registered owner of Stand No . 8399, Solwezi. He claimed that he had entered a partnership with Thomas Sayer granting Mr. Sayer authorization to develop his property known as Stand No . 8399, Solwezi. Page 2 2.3 It was averred that on 9 September 2015, the defendant, a resident of Solwezi, served Mr. Sayer with an eviction notice, claiming to be the registered owner of Stand 982, Solwezi, and requesting Mr. Sayer to vacate the property he occupied within 7 days. The plaintiff asserted that the two properties in question were different. 2.4 It was further claimed that the plaintiff had suffered inconvenience as a result of the defendant's actions, and sought the following reliefs: (i) An Order that the plaintiff is the legal owner of property known as Stand 8399 in Solwezi. (ii) An injunction restraining the l s ' defendant or their agent and servants from carrying out any further activities or operations at Stand No. 8399, Solwezi. (iii) Compensation for trespassing at Stand No. 8399, Solwezi. (iv) Interest on (iii) above. (v) Costs of this litigation. (vi) Suchfurther and additional relied as the Court will deem fit. 2.5 On October 15, 2015, the defendant submitted an amended defence and counterclaim (found on pages 137-139 of the Record of Appeal), arguing that Stand No. 8399 is nonexistent in Solwezi under the plaintiffs name. Additionally, it was asserted that the Solwezi Municipal Council had never formally extended an offer for the mentioned property to the plaintiff or his partner during any council meeting, and there was a lack of a Council Resolution endorsing such an offer. Page 3 2.6 The defendant consistently asserted that he was unaware of the location of the plaintiffs property , Stand No. 8399. Furthermore, he maintained that, regardless, his own property, Stand No. 982, was distinct and separate from that of the plaintiff. 2.7 In the counterclaim, the defendant asserted that the issue had previously been addressed by a court of competent jurisdiction under case number 2013/SSV/515, claiming that the matter was thereby considered res judicata. Additionally, it was alleged in that action, the Solwezi Municipal Council had offered an alternative piece of land to Mr. Tailoshi. 2.8 The defendant additionally claimed that the plaintiff and his partner should be required to provide compelling evidence regarding ownership of Stand No. 982 and Stand No. 8399. Failing to produce such documentary evidence, the defendant contended that it implied fraudulent acquisition of the land by the plaintiff. The defendant urged the plaintiff to present the following: (i) Letter from Solwezi Municipal Council recommending cancellation of earlier offer letters issued by Ministry of Lands in respect of Stand numbers 982 and 4776 because the land in issue is where these stands were created and offers generated. (ii) Council Resolution where the allocation of Stand No, 8399 was approved. (iii) Council Offer letter for Stand No. 8399. (iv) Payment of service charge for Stand No. 8399. (v) Site Plan for Stand No. 8399. Page 4 (vi) Recommendation letter from Solwezi Municipal Council to Ministry of Lands recommending plaintiff or his partner to be given a title deed . 2.9 The defendant further asserted that Stand No. 982 was offered to him after the initial offer to Mr. Gabriel Mukumbi Muluka had been cancelled due to his failure to accept the offer. The defendant argued that he adhered to the proper procedures in obtaining the land, substantiated by various documents, including a Council resolution, a recommendation from Solwezi Municipal Council to Ministry of Lands, a courtjudgment, an offer letter issued by Ministry of Lands, payment receipts from the Ministry of Lands and a title deed. 2 .10 The defendant counterclaimed against the plaintiff as follows: (i) Revocation of the Plaintiff's Certificate of Title (ii) An Order of injunction against the plaintiff whether by himself, servants, agents and whomsoever from interfering with the defendant 's quiet enjoyment of Stand No . 982. (iii) Damages, (iv) Costs,· and (v) Any relief the Court may deem fit. 2.11 After separate interlocutory applications were submitted by the parties, the Registrar issued two Orders for the joinder of pa11ies on 16 October 2015 and 30 June 2016, respectively, thereby adding Anthony G. N. Chipulu and Solwezi Municipal Council as 2nd and 3rd defendants to the ongoing proceedings . Page 5 2.12 The 2nd defendant submitted a defence and counterclaim on 19 October 2015 (found on page 115-117 of the Record of Appeal). In this filing, he asserted that Stand No. 4776, which belonged to him, was different from Stand No. 8399. The 2nd defendant argued that Stand No. 8399 was essentially Stand No. 4776, where he had resided for the past 14 years and could not be forcibly removed. 2.13 In the counterclaim , the 2nd defendant argued that the plot purportedly belonging to the plaintiff, identified as Stand No. 8399, is in reality equivalent to Stand No . 4779 that he owned. However, he asserted that his Stand No. 4779 was still on offer from the Ministry of Lands, although he had accepted the offer and paid for a 99-year lease and was awaiting issuance of the title deed. The 2 nd defendant repeated in substance the 1 st defendant' s request for the plaintiff to produce relevant documentation. He also echoed the 1 st defendant's claims. 2.14 The plaintiff filed a reply and defence to counterclaim on 18 July 2016 in which he averred that he had bought Stand no. 8399, the property in issue from Kelly Tailoshi and that the same property is situated in Solwezi. He averred that although the certificate of title mistakenly describes Stand No. 8399 as being on the Copperbelt, the attached diagram accurately describes the property as being in Solwezi Municipality in the Northwestern Province of Zambia. It was the plaintiffs further averment that Stand no. 4 776 is different from Stand no. 8399 . All other assertions were denied. Page 6 '\ 3.0 DECISION OF THE LOWER COURT 3.1 The trial of this case commenced in the lower Court on 2 August 2018, and proceeded on different dates. Each of the involved parties presented evidence detailing the processes through which they acquired their respective properties. 3 .2 While considering the case, the trial Judge underscored the clarity of Section 33 of the Lands and Deeds Registry Act concerning property ownership. This section explicitly states that a certificate of title serves as conclusive evidence of ownership from the date of its issuance. 3.3 In light of the evidence presented, the Judge acknowledged the existence of separate certificates of title issued to both the plaintiff and the 1 st defendant for the identical same piece of land. In response to this observation, the Judge provided the following remarks: 'Regarding instances where there are two certificates of title, it is instructive to note that in terms of section 13 of the High Court Act, Chapter 2 7 of the Laws of Zambia, I am required to administer law and equity concurrently. Jn this particular case, the resolution of the dispute at hand, largely imports principles of equity. John McGhee Q. C in his book entitled Snell's Equity (Thompson Reuters (Legal) Limited 2008) states in paragraph - 03 at page 56 that at law, as in equity, the basic rule is that estates, and interests primarily rank in the order in which they are created. Jn equity, the result is expressed more directly in terms of temporal priority. He maxim is this: 'qui prior es tempore potior es Jure. ' Page 7 ' That is, 'he who is earlier in time is stronger in law. ' The learned author of Snells Equiy, (supra) goes on to state in the same paragraph 4-03, that accordingly, where there are two competing equitable interests, the general rule of equity is that the person whose equity attached to the property first will be entitled to priority over the other . ... It follows that in this case as well that the certificate of title that was issued earlier will take precedence over the other. ' 3.4 The Judge recognized the necessity to determine which party's certificate of title was issued first and proceeded to outline the court's findings regarding the acquisition of the disputed property. The Judge made the following findings of fact that: (i) There are two certificates of title issued in respect of Stand no. 8399 and Stand No. 982, which are in the same area. (ii) The plaintiff's Stand No. 8399 completely encompasses Stand No. 982 whilst Stand No. 982 only forms part of Stand No. 8399. (iii) The plaintiff bought Stand No. 8399 sometime in 2005 under written agreement dated I 3 October 2005 and was issued with [a} letter [from] the Commissioner of Lands dated 23 April 2014. (iv) The 1st defendant received his offer letter from the Commissioner of Lands on 2 I May 20 I 5. (v) The plaintiff was issued with certificate of title number 301855 relating to Stand No. 8399 on 28 April 2014. (vi) The JS1 defendant was issued with certificate of title number I 001450 relating to Sol/982. Page 8 3.5 After a thorough examination of the presented evidence, the trial Judge affirmed that the plaintiffs title was issued earlier, specifically on 28 April 2014 while the l51 defendant's title was issued on 3 September 2015. The Judge acknowledged that according to Section 33 of the Lands and Deeds Registry Act, a certificate of title could only be nullified in the presence of proven fraud. Since the 1 st defendant alleged fraud in the Plaintiffs property acquisition, the burden was on him to convincingly establish the claim. 3.6 The trial Judge made the following assessment of the evidence presented before her in relation to the plaintiffs acquisition of the property: 'Jn establishing the ownership of this piece of land therefore, it is helpful to look briefly at the history of the acquisition of the said piece of land which the plaintiff bought to establish if it was acquired using the proper procedure. Mr. Tailoshi, PW2 's application for the land was approved on 30th August 2004 and there was a proposed plan for the said plot. Jn the pleadings, the 1st defendant asked the plaintiff to produce the documents for the piece of land which he did as seen by the Notice to Produce. The evidence shows that PW2 followed the procedure outlined by DW3, he filled in the form 'Annexure A', obtained a recommendation from the Council at page 6 of the Notice to Produce, and also a consent to assign at page 2 of the Notice to Produce. This procedure was also in tandem with Administrative Circular No. 1 of 1985 which requires the applicant to apply to the Council. In this case, PW2 followed the procedure and was recommended by Solwezi Municipal Council as seen on page 6 of Page 9 \ the Notice of Produce. It was alleged in the submissions of the 3rd defendant that documents and the procedures for acquiring the plot in issue. There has been no evidence from the 3rd defendant to show how this was done. There was an attempt in the submission to indicate that the letter of offer and the last document to be raised for alienating land were supposed to be written by two different people but in the case of PW2, the same person wrote both. The people who were supposed to have written were not mentioned neither their ranks nor was DW3 asked to shade [shed} more light on the issue. DW4 also doubted the genuineness of the Plot number 8399 and asked this Court to investigate further how the number of the plot changed to 8399 when there was no such number on the site plan. Unfortunately, DW4 was the last witness, and it was up to the defendant who were alleging fraud to prove it with clarity as the burden of prove [proof] ffor] fraud is slightly higher than a mere balance of probabilities. I find that PW2 whom the plaintiff bought the land from followed the procedure to legally acquire the plot and did not obtain it illegally. ' 3.7 The trial Judge found that the l51 defendant had not met the burden of proving fraud, as the evidence demonstrated that the plaintiff had legitimately bought the property from PW2, through proper procedures. 3.8 Regarding the pt and 2nd defendant's request for an injunction against the plaintiff, the Judge articulated the following: Page 10 \ 'Jn the ruling delivered on the 19 April 2016, Hon. Mrs Justice Maka Phiri ruled dismissing the application having found that the plaintiff acquired title to the land earlier than the F 1 defendant and the interests of the 1s1 defendant could not override that of the Plaintiff. Jam also cognizant that the position has not changed given the evidence of the parties before the Court has not changed. J find that the claim for an ir,junction fails for the same reason. Additionally, according to the case of American Cyanamid Company v Ethicon Limited one of the factors the Court takes into consideration when deciding whether to grant an injunction is in whose favour the balance of convenience tilts to. Jn this case, the balance of convenience does not tilt in favour of the defendants but the plaintiff. ' 3.9 Regarding the 1 si defendant 's claim for revocation of the plaintiffs title, the Judge referred to the Nora Mwaanga Kayoba and Vanzani Banda v Eunice Ngulube and Andera Ngulube 1 case. In that case, it was emphasized that purchasers of real property need to exercise heightened diligence m investigating whether the property cames any encumbrances. The Judge, based on the evidence presented, noted that during the 1 si defendant' s acquisition process of the plot, he became aware of other individuals claiming an interest in the property. The Judge maintained that this awareness should have prompted the 1 si defendant to inquire about the plot, and as such, declined the defendants ' claim for the revocation of the plaintiffs certificate of title. Page 11 -.. ' 3.10 Concerning the 2nd defendant's claim for quiet enjoyment of hi s property known as Stand No. 4776, the Judge , based on the evidence presented by the parties, determined that the legal ownership of Stand No. 4776 was not in dispute. The Judge clarified that Stand No. 4776 was distinct from Stand No. 8399. Consequently, the lower Com1 concluded that there was no legal foundation for the 2nd defendant' s claim for quiet enjoyment and rejected it accordingly. 3.11 The Judge, having determined that the plaintiffs title took precedence over that of the 1 st defendant, declined to grant damages to the 1 st and 2nd defendants. 3.12 With regard to the plaintiffs first claim for an order establishing legal ownership of Stand No. 8399 in Solwezi, the Judge reaffinned her earlier conclusion that the plaintiff obtained a proprietary interest in the land prior the 1 st defendant. Furthermore, the Judge emphasized that there was no evidence indicating fraud or impropriety in the plaintiffs acquisition of the mentioned property . 3 .13 Regarding the matter of re-entry, the trial Judge considered the testimony ofDW4, stating that Stand No. 982 was the previous stand number while 8399 was the new one. The Judge concluded that Stand No . 982 was a re-entry by the 3rd defendant, subsequently re-allocated to the 2nd defendant. The Judge emphasized that the issue of re-entry should have been appropriately addressed by the 3rd defendant, who allocated Stand No. 982 to the 2nd defendant, despite it already being titled to the plaintiff on Stand No. 8399, resulting in an overlap with Stand No. 982. Page 12 l 3.14 On the request by the plaintiff for an order of injunction, the lower Court found that the plaintiff had demonstrated that it had a clear and arguable claim to Stand No. 8399 and granted an order of injunction to the plaintiff restraining the defendant's and their agents from interfering or carrying out any activities or operations on Stand No. 8399 in Solwezi . 4.0 THE APPEAL 4.1 Expressing dissatisfaction with the judgment issued by Makubalo, J on 20 September 2021 , the 1 st and 2nd Defendants (hereafter referred to as 'the pt and 2nd appellants ' ) initiated an appeal on 21 April 2022, though a notice and memorandum of appeal. 4.2 The appeal made against the plaintiff (now refe1red to as ' the 1 st respondent') and Solwezi Municipal Council (now the 2nd respondent, is based on eight grounds, outlined as follows: (i) The lower Court erred in law and fact in its judgment in its conclusion when the Court found that the plaintiff had equitable priority of interest over the JS' appellant 's because the l s' respondent 's title deed came earlier despite the evidence on record that the same was obtained in a fraudulent manner. (ii) The Court below misdirected itself in law and/act when it relied heavily on the principle of priority interest in disregard of the F' appellant's and F' respondent's evidence of fraud in the manner that the plaintiff's title was acquired. Page 13 (iii) The lower Court erred in law and fact when it held that the JS1 appellant should have made inquiry concerning the said Plot 982 when evidence on record shows otherwise that the 1s1 appellant did in fact make several enquiries on the land and the right procedure was followed in obtaining the said Plot 982. (iv) The lower Court erred in law and fact when it held that Stand 4776 was not in contention and different from Stand 8399 belonging to the 1s1 respondent and that the claim for quiet enjoyment failed without considering the evidence on record showing that Stand 8399 overlapped both Stand no. 4776 and 982 and that the 2nd appellant will be affected when the 1s1 respondent decides to eriforce the judgment. (v) The lower Court erred in law and fact when it held that Stand 982 was a re-entry by the 2nd respondent and therefore the 2nd respondent should have dealt with the re-entry properly when it is clear on the evidence on the record that the re-entry did not affect the numbering of the said plots. (vi) The lower Court erred in law and fact when it held that the F 1 respondent came with clean hands when the evidence on record shows otherwise especially in the manner the land was allocated and the 1st respondent's evidence and that of his witnesses contradicted each other on critical aspects particularly the year when the 1st Respondent's alleged contract was made. (viz) The lower Court misdirected itself when it held that the F 1 respondent was the legal owner of Stand 8399 when there is no Page 14 evidence on record that Stand nos. 982 and 4776, which are overlapped by Stand 8399 was never cancelled. (viii) Any other grounds that the appellants may wish to raise at the hearing of the appeal. 5.0 ARGUMENTS OF THE PARTIES 5.1 The pt and 2nd appellants submitted their heads of arguments on 20 June 2022, while the 2nd respondent filed theirs on 16 September 2022. The P 1 respondent ' s arguments were filed on 16 February 2024. We have considered the same although we will not recast the arguments here but refer to them as necessary in the judgment. We note that while the 2nd respondent is not an appellant, it has supported all the appellants grounds of appeal. 6.0 HEARING OF THE APPEAL 6.1 The appeal was heard on 21 Febrnary 2024, with the absence of counsel for the appellant and the 2nd respondent, while counsel for the 1 st respondent' s counsel was present. The l51 respondent's counsel sought to dismiss the action due to the absence of the appellant ' s counsel. However, given that the appellant and the 2nd respondent ' s counsel had duly complied with the Rules and submitted their heads of argument, the com1 rejected this application and decided to proceed with determining the appeal based on the documentation before it. Page 15 \ 7.0 OUR DECISION ON THE APPEAL 7 .1 Upon reviewing the evidence on record, the j udgment under scrutiny, the grounds of appeal and the arguments presented by the parties, it is noted that seven of the grounds of appeal aim to contest the factual determinations made by the trial Judge. The appellate Court acknowledges the restricted circumstances under which it can intervene or overturn factual findings of a lower court. 7.2 In the case of Amchile Import & Export Limited and Others v Ian Chimanga Tawana Business Ventures) and another2, Malila JS (as he then was) expressed the perspective of the Supreme Court as follows: 'To succeed, a party urging an appellate Court to reverse findings of fact by a trial Court, must demonstrate that the trial court made findings which were perverse or in the absence of relevant evidence, or upon a misrepresentation of facts, or that on a proper view of the evidence before the Court, no trial court properly directing its mind to it could make those findings. 7.3 Similarly, the case of Wilson Zulu v Avondale Housing Project3 is instructive on this point that 'the appellate court will only reverse findings of/act made by a trial court if it is satisfied that the.findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts . ' 7.4 The authorities provide valuable guidance, emphasizing that an appellate court is bound by certain principles. Specifically, an appellate court is Page 16 ' only empowered to overturn findings of fact by a trial Judge if those findings are deemed perverse, made without any pe11inent evidence, or based on a misunderstanding of the facts. 7 .5 Therefore, in evaluating the grounds of appeal before us, it is essential to determine whether any factual findings of the lower Court were perverse, made in the absence of evidence, or based on a misunderstanding of the evidence. 7 .6 It is not in contention that the 1 st respondent acquired his certificate of title before the 1 st appellant. Consequently, the lower court held that the 1 st respondent obtained a proprietary interest in the land prior to the 1 st appellant. The first and second grounds of appeal, which we will address concurrently, as they share identical contentions, assert that the lower Court erred in determining that the 1 st respondent held a priority interest, despite evidence on record suggesting that the 1 st respondent title was acquired through fraudulent means. Hence, at the core of this dispute lies the question of whether there was fraud or impropriety in the way the 1 st respondent obtained his title. 7.7 In the case of Nkongolo Farm Limited v. Zambia National Commercial Bank Limited and Others,4 the Supreme Court articulated the following position: 'Where a party relies on any misrepresentation, fraud, breach of trust, willful default or undue influence by another party, he must supply the necessary particulars of the allegation in the pleadings. Fraud must be precisely alleged and strictly proved. Page 17 ' There is no presumption of fraud. In the instant case, fraud was not alleged. ' 7. 8 We also draw guidance from the case of Davy v Gareet5 as referenced in Halsbury's Laws of England, volume 36 at paragraph 36, page 27 which states: 'The pleader should set out the facts, matters and circumstances relied upon to show that the party charged had or was actuated by a fraudulent intention. The fraudulent conduct must be distinctly alleged and subsequently distinctly proved. It is not enough for a party merely to plead the facts from which fraud may be inferred.' 7 .9 The authorities provide guidance on the process of presenting, pleading and substantiating allegations of fraud in legal proceedings . When asserting fraud, the party making the claim must include precise details of the allegation in the pleadings. Fraud must be specifically alleged and rigorously proven, as emphasized by numerous decisions of the Apex Court. 7 .10 The Appellants and the 2nd Respondent have presented extensive arguments asserting that there is evidence on record indicating that the 1 st Respondent ' s title was procured through fraudulent means . Counsel , in their respective heads of argument, has made efforts to underscore the specific details of the alleged fraud. 7 .11 Regarding the first and second grounds of appeal, counsel for the 1 st respondent argues that since the 1 st respondent, obtained a certificate of Page 18 I title, to Stand No . 839, Solwezi, as such is the legal owner of and has a priority interest in the property. Counsel for the 1 st respondent fm1her contends that in cases of conflicting land conveyances, the interests will be prioritized based on their order of creation. Counsel cited John McGee, Snell Equity, 13 th ed. , at page 47 which supports the principle that: 'where the equities are equal, the first in time shall prevail.' 7 .12 Counsel also referenced Section 33 of the Lands and Deeds Registry Act, which states that a certificate of title is conclusive evidence of ownership and can only be contested or revoked under Section 34 of the said Act, if fraud in the acquisition of such title is proven. Additionally, counsel cited the case of Anti-Corruption Commission v Barnet Development Corporation,6 to support this position. Counsel asserted that there was no fraud in this case. 7 .13 After closely examining the pleadings on record, it is clear that the allegations of fraud were not expressly pleaded, detailed, or substantiated. Despite the appellants contending that there was evidence of fraud in the records, no such evidence was presented. Therefore, we agree with the learned trial Judge ' s determination that the appellants, as defendants in the lower court, who alleged the 1 st respondent's fraudulent acquisition of title, bore the burden of proving their claims. Since the appellants were unable to substantiate their allegations, the trial Judge cannot be faulted for arriving at her decision. Accordingly, grounds 1 and 2 are not sustained. 7 .14 The appellants argue, regarding ground 3, that the lower court' s decision was erroneous in both law and fact. They contend that the court erred in Page 19 t concluding that the 1 st appellant failed to inquire about Plot 982. According to the appellants, the evidence on record demonstrates that the 1 si appellant did, in fact, make several enquiries about the land and followed the correct procedure to obtain Plot 982. They assert that upon being informed by the Chief Lands Officer of the 2nd Respondent that Mr Gabriel Mukumbi Muluka had been initially offered Plot 982 by the Commissioner of Lands, the 1 st appellant sought out Mr Muluka, only to discover that he had passed away. According to the appellants, this demonstrates that proper inquiries were made regarding the land acquisition, contrary to the trial Cou11's ruling. 7.15 In relation to the third ground of appeal , the l51 respondent's counsel asserted that the 1 st appellant did not made inquiries about the land in question but made allegations that other people were trying to acquire Plot 982. Counsel cited the Nora Mwaanga Kayoba case earlier cited, where the court stated that, 'in purchasing real properties, parties are expected to approach such transactions with much more serious inquiries to establish whether or not the property in question has encumbrances.' 7 .16 This issue squarely revolves around the factual inquiry regarding the investigations conducted by the 1 st appellant before acquiring the title for Plot 982. The available facts indicate a ruling by the subordinate Court in case number 2023/SSVS l 5, documented on page 196 to 198 of the appeal record. This ruling demonstrates that the 1 si appellant indeed initiated legal action against the 2nd respondent for breach of contract and land recovery. Notably, a crucial aspect of the case summary is the Page 20 factual determination made by the lower cou1i shown at page 197 of the record which reads in part as follows: 'The Town Clerk wrote to the Chief Lands Officer to advise on plot number 982, 983 and 984 which according to the council, there plots were on offer but not developed. This was in minute dated 201 " March 2013. The Senior Lands Officer replied in a letter dated 201 " March 2023 indicating that plots 983 and 984 were vacant ... ' 7 .1 7 In the lower Court, the 2nd respondent acting as the defendant, chose not to defend their position, leading the court to rely solely on the evidence provided by the 1 st appellant. It is therefore indisputable that on 17 October 2013, when the 1 st appellant initiated legal action against the 2nd respondent in the Subordinate Court, he was aware (having in his possession the requisite correspondence between the Solwezi Municipal Council and the Ministry of Lands), that Plot 982 was not available for allocation to him . This was established from the response from the Senior Lands Officer at the Ministry of Lands to the Town Clerk, which only confirmed the availability of the other two plots, namely Plots 983 and 984. Additionally, he knew that at that time, the Ministry of Lands, not the 2nd respondent, was responsible for the plot ' s unavailability. Despite this knowledge of the prevailing circumstances, the 1 st appellant still accepted the mistaken offer of Plot 982 made to him by the Solwezi Municipal Council through correspondence dated 23 rd April 2014, as documented on page 199 of the record of appeal. Page 21 7.18 Meanwhile, by the minutes of the Solwezi Municipal Council of 9th July 2014 found at pages 200 to 204, particularly at page 203 , the Council minute states in part as follows: "Mr. Jikemba requested that he be given a plot in exchange of payment. He was tasked to look for a vacant plot and plot No. 982 was discovered ... Further, there were other interests created by Solwezi Municipal Council over the same piece of land in the names of a Mr. Tailoshi and Mr. Cosamu . .. " 7.19 The aforesaid excerpt from the minutes was included in the bundle of documents presented by the 1 st appellant in the lower Court. What becomes apparent from this evidence is that if the 1 st appellant had conducted additional inquiries by involving the Ministry of Lands regarding the encumbrance affecting Plot 982 , he might have been informed about Mr. Tailoshi, and, by extension, the 1 st respondent ' s stake in Plot 982. 7.20 We reach this conclusion because, while the l5 1 appellant was actively involved in allowing the 2nd respondent to misrepresent the position regarding the availability of Plot 982, the Ministry of Lands had already offered Stand 8399 to the 1 s t respondent on 23 rd April 2014 , as evidenced by the offer letter found at page 212 of the appeal record. 7.21 Furthermore, the letter from the Solwezi Municipal Council dated 14th July 2014, and presented on page 205 of the record of appeal, requesting the cancellation, possession, and offer of Plot 982 to the 1 s t appellant, Page 22 came after the 1 st respondent had already acquired interest in the Stand 8399, as indicated earlier. This information could easily have been verified by the 1 st appellant had he conducted proper due diligence. Therefore, we cannot fault the trial Judge for concluding that the 1 st appellant should have conducted inquiries regarding Plot 982. Consequently, this ground of appeal is unsuccessful. 7 .22 We wish to highlight here the subordinate role the 2nd respondent plays in land allocations and acquisitions by members of the public, as outlined by Matibini J in the High Couti case of James Mbewe (Suing for and on behalf of the Small Scale Industries Association of Chi pa ta District) and Potati Makunga (Suing for an on behalf of the Small Scale Industries Association of Chipata District) v James Mwanza. 7 In that case, the learned Judge cited the Supreme Court case of Chansa v Lusaka City Council and Another8 and observed in that case as follows: "In order to resolve the contentions of the parties, it is necessary to consider in some detail, first, the law and procedure relating to alienation of land. Second, the doctrine of bona fide purchaser of a legal estate for value without notice. The convenient starting in considering the first issue is the case of Chansa v Lusaka City Council (2). The Chansa case was an appeal to the Supreme Court against a judgment of the High Court ref using to issue a declaratory order that the appellant was the right owner of a plot in Lusaka. In the course of delivering thejudgment of the Supreme Court, Chibesakunda JS, made the following observations: first, that the authority to consider Page 23 applications for allocation of land to members of the public is vested in the President of Zambia, who has delegated his authority to the Commissioner of Lands. Second, in terms of Circular Number 1 of 1985, an applicant for allocation of land has an option to either apply directly to the Commissioner of Lands, or to apply through a local authority, which enjoys delegated authority or powers to receive applications for allocation of land from members of the public. Where a member of the public opts to follow the second route, a local authority is required to first advertise any land that is available; second, to receive applications from members of the public, and to make recommendations to the Commissioner of Lands. Third, the power to allocate land, and to make offers to successful applicants, is still retained by the Commissioner of Lands. Thus, the Commissioner of Lands after receiving recommendations from the local authorities has the discretion to either accept, or reject the recommendations made by the local authorities. Lastly, the Supreme Court observed on the facts of the Chansa case, that the Commissioner of Lands made an offer to Mr. Chansa. And he in turn accepted the offer and paid for the various charges for the plot. Thus, the Supreme Court concluded that Mr. Chansa was entitled at law to choose one of the two routes posited above. In that case, Mr. Chansa chose the route of applying for the land directly to the Commissioner of Lands. Ultimately, the Supreme Court held that Mr. Chansa obtained the land in dispute regularly." Page 24 7.23 The above authority is a stern reminder that the local authorities act as agents with delegated authority in land allocation and administration matters and they cannot inappropriately ove1Tide the superior authority that vests in the Commissioner of Lands in exercise of the said power. 7 .24 Regarding ground 4 of the appeal, the appellants assert that the lower Court made errors both in law and fact by concluding that Stand 4 776 was not under contention and distinct from Stand 8399, which belongs to the 1 st respondent. Furthermore, they argue that the claim for quiet enjoyment was dismissed without considering the evidence on record demonstrating that Stand 8399 overlaps with both Stand no. 4776 and Plot 982, and that the 2nd appellant would be adversely affected if the pt Respondent were to enforce the judgment. The appellants argue that Stand 8399 belonging to 1 st respondent, not only overlaps with Plot 982 of the pt appellant but also Stand 4 776 belonging to the 2nd appellant, and thus, the trial Court erred in in its ruling. The appellants support their argument with evidence from a sketch map presented on page 270 of the record of appeal. 7 .25 Regarding the fourth and fifth ground of appeal, counsel for the 1 st respondent mentioned that the evidence presented before the lower court came from DW4, a survey engineer employed by the 2nd respondent. DW4 ' s investigation, as detailed in a report (pages 444 to 445 Record of Appeal, volume 2), indicated that Plot 982 was entirely within Plot 8399, with Plot 8399 being the new number (pages 448-9 line I 9-25 of the Record of Appeal volume 2). DW4 concluded that both parties were claiming the same piece of land based on this survey (page 448 line 3-5 ROA vol 2). Page 25 7 .26 After reviewing and examining the evidence depicting the locations of the various plots relative to each other, (page 270 of the record of appeal), there is no indication of the existence of Stand 4 77 6 purportedly belonging to the 2nd appellant. The evidence only shows the overlap between Plot 982 and Stand 8399 , with Stand 8399 encompassing the entirety of Plot 982 . However, there are square linings on the map that do not bear any numbering, which traverse a portion of Plot 982 , extending into the road reserve up to the bounding for Plot 983 belonging to FRA, and further into the road reserve to the North-East, almost meeting the boundaries of Plot 988 and 987. Notably, this map does not depict the existence of the 2nd appellant ' s alleged Stand 4776. At most, the map only shows Plot 4 739 situated to the south of Plot 982 . Consequently, the trial Judge cannot be faulted for not upholding the 2nd appellant' s claim against the l51 respondent, as the evidence fails to demonstrate any overlap between the respective properties. Therefore, this ground of appeal fails for the same reason. 7 .27 The appellant further argues, in relation to ground 5, that the lower Court erred both in law and fact by concluding that Stand 982 was a re-entry by the 2nd respondent and therefore the 2nd respondent should have properly addressed the re-entry issue, despite the evidence on record indicating that the re-entry did not impact the numbering of the plots. The appellants contend that the trial Court misinterpreted the actions of the 2nd respondent as an attempt to re-enter Plot 982 into Stand 8399. They argued that the only evidence presented on record was the 2nd respondent' s request to re-enter the land concerning the withdrawal of the offer form Gabriel Mumbi Muluka, not in relation to the renumbering. Page 26 7 .28 Our considered view is that this ground of appeal lacks merit, as the Solwezi Municipal Council does not possess the authority to supersede the actions of the Commissioner of Lands in land allocations. The Commissioner of Lands, as the principal authority over local authorities acting as agents, cannot be disapproved by the Council if his office decides to re-enter, renumber, and re-offer a parcel ofland that they deem available for allocation. 7 .29 This perspective is fo1iified in the Supreme Comi's ruling in the case of Justin Chansa v Lusaka City Council who held as follows: "(]) The authority to consider applications for land allocation from members of the public is vested in the President of Zambia who has delegated this authority to the Commissioner of Lands. (2) An applicant for land has in terms of circular Number 1 of 1985, an option either to apply directly to the Commissioner of Lands, or to apply through a Local Authority which has been delegated powers to receive applications for land from members of the public". 7.30 The evidence presented in the arguments discussed earlier indicates that the Commissioner of Lands (Ministry of Lands), through the Senior Lands Officer, consistently communicated the unavailability of Plot 982 to the Solwezi Municipal Council, and the 1 st appellant was aware of this fact. If the Ministry of Lands had chosen to re-enter and renumber the subject parcel of land to Stand 83 99 in the circumstances of this case, it Page 27 should not be subject to questioning. The trial court cannot be faulted for holding that the 1 st appellant should have resolved his contentions with the 2nd respondent regarding land issuance. 7 .31 Regarding ground 6 of the appeal, the appellants contend that the lower Court erred in law and fact by concluding that the 1 st respondent acted with clean hands, despite the evidence suggesting otherwise, particularly concerning the way the land was allocated, inconsistencies between the 1 st respondent 's evidence and his witnesses, notab ly regarding the year of the alleged contract. The appellants argue that following the re-entry after the withdrawal of the offer to Mr. Gabriel Mukumbi Muluka for Plot 982, the trial Court should have investigated how the 1 st respondent obtained Stand number 8399 . 7 .32 In relation to the sixth ground, the pt respondent ' s counsel asserted that the 1 st respondent had come to court with clean hands as he had followed the laid down procedures in relation to the acquisition of the property. 7.33 Our stance on this issue, firstly , is to have recourse to the assessment of evidence on this issue made by the trial Court below. The Court observed that the predecessor in title to the 1 st respondent, Mr. Tailoshi followed all the procedures in applying and acquiring the land in question from the Commissioner of Lands, including obtaining recommendation from the 2nd respondent. This implied that Mr. Tailoshi consequently passed on good title to the 1 st respondent. The trial Court also observed that Mr. Tailoshi followed all procedures which were in tandem with Administrative Circular No. 1 of 1985. Regarding the allegation of fraud on the part of the 1 st respondent in its acquisition of the land in dispute, Page 28 the trial Court observed that the 1 st appellant which made this allegation did not adequately adduce any evidence to substantiate the said allegation to the standard required of him at law. 7.34 Secondly, the appellants imply irregularities in how the 1 st respondent was allocated Stand No. 8399 by the Ministry of Lands. However, as stated earlier in this judgment, the burden of proof regarding such irregularities in the acquisition of title by the 1 st respondent from the Ministry of Lands rested with the appellants . The failure to provide such evidence renders their case unsubstantiated and leaves the Court without any basis upon which to challenge the 1 st respondent 's title. Therefore, the sixth ground of appeal also lacks merit. 7.35 In ground 7 of the appeal, the appellants argue that the lower Court erred in holding that the 1 st respondent was the legal owner of Stand 8399 , as there is no evidence on record indicating that Stand Nos. 982 and 4776, which are overlapped by Stand No. 8399 was cancelled. The 1 st respondent 's counsel on the other hand, asserted that the lower court had rightly determined that the 1 st respondent was the legal owner of Stand No . 8399 Solwezi and that there was no fraud or impropriety in the acquisition of the land in question. 7 .36 Based on our previous findings , we find no fault with the trial Court ' s decision. The trial comt properly considered the issue of the priority of interests regarding the interests acquired by the 1 st respondent compared to those of the 1 st appellant, as discussed earlier. Furthermore, there is no evidence on record demonstrating that Stand 8399 overlaps with Stand 4776. Page 29 7.37 Therefore, the trial Court ' s conclusion that the 151 respondent is the legal owner of Stand 8399 stands on solid ground. Consequently, ground 7 of appeal fails accordingly. 7.38 Before concluding, we wish to express our regret regarding the conduct of the 2nd respondent in this case. Such conduct has the potential to result in grave injustice to members of the public in land allocation . It is imperative that appropriate administrative actions be taken by relevant public officials to rectify this situation and prevent its recurrence in the future. It is disheartening to see that a public institution, like the 2nd respondent, which should uphold transparency, efficiency, and justice in the allocation of land, actively misled the 1 st appellant into believing he was entitled to land that was clearly unavailable for allocation to him. 7 .39 Additionally, we have observed a widespread issue of land disputes , particularly in Solwezi, involving boundary and area overlapping misunderstandings. This problem seems to have originated, in part, from the failure to harmonize land survey systems and techniques between the central land administration management at Ministry of Lands and the land management system and the Local Authority management system in Solwezi. Looking ahead, we believe that such disputes can be prevented by replanning and re-surveying areas yet to be allocated and harmonizing this data between the two public institutions responsible for managing land administration processes. Furthermore, where there are boundary disputes and conflicting surveys as in this case, it is crucial for the relevant authorities to intervene promptly to identify and rectify the issue, rather than relying solely on Court resolution. Page 30 8.0 CONCLUSION 8.1 Having determined as we have and all grounds of appeal having been unsuccessful, the appeal before us is dismissed accordingly, and we make the following orders: (i) (ii) Thejudgment of the lower Court of 20 September 2021 is upheld. The injunction order restraining the 1st and 2nd appellants and their agents from interfering with or carry ing out any activities or operations on Stand No. 8399 in Solwezi is accordingly upheld. (iii) The certificate of title issued in respect of Stand No. 982, in Solwezi be and is hereby cancelled forth with. (iv) The costs of these proceedings to be borne by the appellants, to be taxed in default of agreement. C. K. Makung~ COURT OF APPEAL JUDGE C DGE . A. Sharpe-Phi i COURT OF APPEAL JUDGE Page 3 1