Goma ( Mrs Botha) v Amoni (Appeal 151 of 2014) [2017] ZMSC 272 (26 May 2017)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 151/2014 SCZ/8/240/2013 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: CATHERINE GOMA (MRS. BOTHA) APPELLANT AND MARY AMONI RESPONDENT CORAM: Mwanamwambwa, DCJ, and Kaoma and Mutuna, JJS On: 9th May, 2017 and 26th May, 2017 For the Appellant : N/A For the Respondent : N/A JUDGMENT Kaoma, JS delivered the Judgment of the Court Cases referred to: 1. Alex Dingiswayo Jere (suing as Administrator of the estate of Courtson Jere) v Edward Kangwa Mumbi - Appeal No. 172 of 2010 2. Anti Corruption Commission v Barnnet Development Corporation Limited (2008) 1 Z. R. 69 3. Chimambo and others v Commissioner of Lands and others (2008) 1 Z. R.l 4. Chansa v Lusaka City Council (2007) Z. R. 256 5. David Nzooma Lumanyenda and another v Chief Chamuka and others (1988-1989) Z. R. 194 Statutes referred to: 1. Rules of the Supreme Court (White Book) 1999, Order 113 2. Lands and Deeds Registry Act, Cap 185, sections 33, 34 and 35 3. Lands Act, Cap 184, sections 13 and 31 J2 On 20th August, 2012, the respondent, Mary Amoni took out originating summons in the High Court (as applicant), against one Simon Botha (as 1st respondent) and Mrs. Botha (as 2nd respondent), pursuant to Order 113 of the Rules of the Supreme Court 1999, seeking a declaratory order that the respondents were squatters and must vacate the portion of Farm Number L/6218/M Lusaka which they occupied without the consent or authority of the applicant. The appellant asserted that she was Mrs. Botha (2nd respondent) and that she was married to Simon Botha (1st respondent), now deceased. However, there is no explanation as to how the names of the parties, as originally framed in the originating process changed without any amendment of the 2nd respondent’s name to Catherine Goma. For this reason, we shall continue to refer to the parties as they were in the court below. In her affidavit in support of originating summons, the applicant disclosed that she is the registered owner of Lot No. 6218/M and that the respondents were squatters who had settled on a portion of her farm without her knowledge, consent or authority and all attempts to reason with them into leaving her property proved futile. The respondents continued to illegally J3 occupy her land in makeshift structures. As a result, she sought the indulgence of the court for an order to evict the respondents. She annexed a copy of certificate of title No. 126589 in respect of the said land issued in her name on 3rd August, 2011. In her affidavit in opposition, the 2nd respondent refuted that the applicant was the registered owner of the disputed land. She averred that the Kafue District Council approved her as a sitting tenant at a meeting held on 8th February, 2005 and she was told to go to the Ministry of Lands to get the letter of offer. She was given authority by the Council to build on the said farm and she paid a consideration of K50,000. She annexed to her affidavit, copies of the list of approved sitting tenants of farm 255/A, the letter of approval and the receipt. The 2nd respondent also stated that she went to the Ministry of Lands; she was told to submit all the necessary documentation needed to get the letter of offer; and she was asked to wait for the letter. For these reasons, she insisted that she is not a squatter on the disputed land. She further asserted that she conducted a search at the Council to ascertain whether her allocation had been received but she was advised that the allocation still stood and the Ministry was supposed to process letters of offer. J4 According to her, the Ministry of Lands would have informed her if the offer was no longer available or if the land was sold to someone else. She urged the court not to evict her as she was duly offered the land she occupies. In her affidavit in reply, the applicant disclosed that she had been registered owner of the land since 1st December, 1992. Initially, she was granted a 14 year lease by the Commissioner of Lands from 1992 until 3rd August, 2011 when she was granted a 99 year lease and was issued with another certificate of title. She produced a Lands Register printed on 12th September, 2012 as proof of ownership. She averred that since she was a title holder at the time the respondents were allegedly allocated her land; the Council lacked jurisdiction or power to allocate to the respondents an interest in the said land. At the hearing, counsel for the applicant referred the court below to section 33 of the Lands and Deeds Registry Act, Cap 185, which provides that a certificate of title shall be conclusive evidence of ownership of land and to the case of Alex Dingiswayo Jere (suing as Administrator of the estate of Courtson Jere) v Edward Kangwa Mumbi1 where we considered the effect of a provisional certificate of title for a 14 year State lease. J5 On the other hand, counsel for the 2nd respondent merely relied on the contents of the affidavit in opposition. After considering the affidavit evidence, the arguments by counsel for the applicant and the authorities cited, the learned trial judge found, in short, that the applicant had demonstrated that she was at all material times the registered proprietor or beneficial owner of the disputed property for which she was issued with certificates of title No. L/4664 and L/126586 and that the 2nd respondent was in adverse possession without the applicant’s authority or consent. She granted an order for possession of the disputed land. The 2nd respondent has now appealed on four grounds as follows: 1. The learned trial Judge erred in both law and in fact when she held that the respondent was not entitled to the said piece of (sic) as she had no title to the said piece of (sic) as demonstrated by the respondent who exhibited a title deed. 2. The learned trial Judge erred in law and fact by not taking into consideration the laid down legal procedure of how land is obtained through the Local Council and did not determine whether the respondent had followed procedure before obtaining the title deed. 3. The learned trial Judge erred in law and fact by failing to question the respondent on how the title deed was obtained and on how the appellant was being displaced after having customary land title of the said piece of land. 4. The learned trial Judge erred in law and fact by not addressing the law as provided for under the Lands Act Chapter 184 of the Laws of Zambia as provided under section 31(2) (3) & (4) of the said Act. J6 In support of these grounds, the 2nd respondent filed written heads of argument but we have not seen any response by the applicant. Further, both parties and or their counsel did not attend the hearing or excuse their absence despite service on counsel, of the notice of hearing of the appeal on 21st and 27th March, 2017 respectively. However, since we have the 2nd respondent’s heads of argument (wrongly titled applicant’s heads of argument) we have proceeded to render our judgment. In the heads of argument, counsel for the 2nd respondent argued that the court below overlooked salient steps that take place before land is allocated to an applicant and the fact that the applicant acquired title to the land without the preliminary recommendation from the Kafue District Council as required by law and no evidence was led to that effect. According to counsel, the court was wrong in its description of the 2nd respondent as a squatter as she inherited the traditional land from her uncle, Aaron Phiri who had lived on the land from 1978 until he died in 2001 but the 2nd respondent could not gain title through prescription as she was alive to the fact that it was not tenable under leasehold and she took the right procedure to apply for ownership through the Council. J7 We hasten to say that this argument by counsel is tantamount to giving evidence from the bar and is totally unacceptable. Clearly, such assertion was never made by the 2nd respondent in her affidavit in opposition. Her defence was that she was authorised by Kafue District Council to occupy the land in issue in 2004; and that she was identified as a sitting tenant by the Council and recommended to the Commissioner of Lands for allocation of the land. This argument is a mere afterthought. Counsel further argued that the documents showing the steps taken by the 2nd respondent to apply for that piece of land were not given due attention by the court below on the basis that once the other party is in possession of a title deed the same cannot be challenged except in certain specific circumstances. It was contended by counsel for the 2nd respondent that in order to arrive at a fair decision, the court below should have considered how the Kafue District Council could offer land which was on title to another person; that the Council advertised the land to the public and to the occupiers of the land that included the 2nd respondent; and that the latter was given a letter of offer and the Council recommended her to the Commissioner of Lands for the allotment of the land. J8 It was also argued by counsel that while it is correct to say that a title deed is a supreme evidence of ownership, and ownership can only be challenged where there is fraud, this is a classic matter of possible fraud and the appellant should be given the benefit of doubt. Counsel cited section 13 of the Lands Act, Cap 184 and argued that this section is clear on the conversion of customary land under which the land in issue was categorised and it was followed by the Council but the applicant did not lead evidence to complain about the action taken by the Council to parcel out the land and allocate it to the respondents. Again counsel is testifying from the bar. Finally, it was submitted that the applicant was an absentee land lord for her not to have known that the Council was in possession of the land which is very possible as the applicant has not conducted any development on the land since it was allocated to her and the same is about to be sold by her to another person. We hasten to say yet again that the 2nd respondent never averred in her affidavit that the land was advertised by the Council or that the land was categorised under customary law or indeed that the land was about to be sold to another person. o J9 Counsel is again testifying from the bar and we are prompted to immediately dismiss these illusive arguments. We have considered the record of appeal, the judgment of the court below and the arguments by counsel for the 2nd respondent in so far as they are relevant to the determination of this appeal. In our view, the only issue raised upon this appeal is whether the learned trial judge was on firm ground to grant the order for possession of the disputed land. From the record, in arriving at that decision, the learned judge accepted that the land was offered to the applicant on 1st December, 1992; and that on 16th August, 1995 a 14 year State lease was registered in her name, upon which she was issued with certificate of title No. L/4664, which expired on 24th September, 2008. The learned judge also found that the authority on which the 2nd respondent claimed entitlement was an application made to the Kafue District Council in 2005 and was approved on 14th June, 2005 with a recommendation to the Commissioner of Lands, for her to be offered the same land. The learned judge further found that though the 2nd respondent claimed to be sitting tenant, she did not disclose the circumstances or authority by which she entered upon the land J10 or when exactly, even if it appeared from the receipt she exhibited for payment of service charges, that she was in occupation of the land at the very least, by 3rd June, 2004, a year before her application to be allocated the land was approved by the Council. The learned judge went on to refer to Order 113 of the Rules of the Supreme Court and identified the issue for decision as whether the 2nd respondent fell in the category of a squatter. The judge was satisfied on the evidence that there could not have been any lawful application by any person or consideration of such application by any authority, for property which was already subject of a certificate of title; and that the 2nd respondent’s application and purported approval by the Council for the same piece of land could not be said to have been regular. The learned judge rejected the 2nd respondent’s argument that she was still waiting for a letter of offer from the Commissioner of Lands, when the property was now subject of a 99 year lease and certificates of title No. L/126586, in the applicant’s name; and the 2nd respondent had not impugned the validity of the applicant’s title to the land. Accordingly, she found that the applicant was the registered proprietor of the disputed JU land and that the 2nd respondent was in adverse possession without her authority or consent. She then ordered possession. Certainly, the learned judge was right that Order 113 of the RSC, for summary possession of land, is targeted at squatters and those persons who are trespassers or such other persons who entered upon or remain in occupation of land, without the authority or consent of the person claiming entitlement. As we have observed above, most of the arguments made by the 2nd respondent are not supported by the evidence on record. What is obvious is that there was no dispute in the court below that the applicant is the registered owner of the disputed land, and has, since 1995, held two certificates of title, first under a 14 year lease and secondly under a 99 year lease and no fraud or impropriety was alleged or proved by the 2nd respondent. In terms of section 33 of the Lands and Deeds Registry Act, a certificate of title is conclusive evidence of ownership of land by the title holder and in the case of Anti Corruption Commission v Barnnet Development Corporation Ltd2, we held that: “Under section 33 of the Lands and Deeds Registry Act, a certificate of title is conclusive evidence of ownership of land by a holder of a certificate of title. However, under section 34 of the same Act, a certificate of title can be challenged and cancelled for fraud or reasons of impropriety in its acquisition.” J12 Furthermore, in the case of Chimambo and others v Commissioner of Lands and others3 we held that the Commissioner of Lands can, on behalf of the President, make a grant or disposition of land that is free or unencumbered to any person who qualifies under the law. And in the case of Chansa v Lusaka City Council4 we put the matter 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. As per Circular No. 1 of 1985, an applicant in Lusaka has an option either to apply directly to the Commissioner of Lands or to apply through the respondent who has been delegated powers to receive applications for land allocation from members of the public. It is also clear from the evidence that where a member of the public opts for the second route, the respondent is only mandated, firstly, to advertise any land available; secondly, to receive applications from members of the public; and thirdly, to make recommendations to the Commissioner of Lands. The power to allocate land and make an offer to successful applicants still remains in the Commissioner of Lands. The respondent only makes recommendation to the Commissioner of Lands who after receiving these recommendations has the discretion to either accept or reject the recommendation”. In this case, the disputed land was not free or unencumbered at the time the 2nd respondent took occupation allegedly on authority from the Kafue District Council. Therefore, as rightly found by the learned judge, the Council had no power to alienate the land to the 2nd respondent or any other person, as the land was not available for re-allocation. J13 Counsel for the 2nd respondent quoted section 13 of the Lands Act, Cap 184. This relates to certificate of re-entry and is of no relevance to this appeal as there was no evidence of re-entry by the Commissioner of Lands and the latter never offered the land to the 2nd respondent who seems to be waiting in perpetuity for a letter of offer. The learned judge was right that under section 35 of the Lands and Deeds Registry Act, no rights by adverse possession can be acquired if land becomes the subject of a certificate of title. This is what we said in the case of David Nzooma Lumanyenda and another v Chief Chamuka and others5. In this case, there was no evidence by the 2nd respondent of any prior, protectable interest in the land before it was alienated to the applicant and in the absence of fraud or impropriety in the acquisition of the certificates of title, it was unnecessary for the learned judge to interrogate the procedure of obtaining land through the Kafue District Council or how the applicant obtained her certificates of title to the land. Further, section 31 of the Lands Act, cited in ground 4 of the appeal, provides for the making of regulations by the Minister for the better carrying out of the provisions of the Act and has no J14 bearing on this appeal. Maybe, counsel meant to refer to the Lands (Customary Tenure) (Conversion) Regulations made pursuant to section 31 of the Act. But even then, as we have said above, the arguments relating to regs. 3 and 4 (2) (a)(b) suggesting that the land was held by the 2nd respondent under customary tenure after she inherited it from her late uncle and that it was converted to leasehold tenure, amounts to giving evidence from the bar as the 2nd respondent never made such assertion. We are satisfied that the learned judge was on firm ground when she ordered possession having found that the applicant was the registered proprietor of the disputed land and that the 2nd respondent was in adverse possession without her authority or consent. There is no merit in the appeal and we dismiss it with costs. If the 2nd respondent is still on the land, she should be evicted immediately.