Cetina Transport Limited v Metro Investments Limited (Appeal 171 of 2005) [2008] ZMSC 105 (20 October 2008)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) Appeal No. 171/2005 BETWEEN: CETINA TRANSPORT LIMITED (cid:9) APPELLANT AND METRO INVESTMENTS LIMITED (cid:9) RESPONDENT Coram: Chirwa, Silomba and Mushabati, JJS On 16t April 2008 and 20th October 2008 For the Appellant: (cid:9) Hon. S. Sikota, M. P of Central Chambers For the Respondent: (cid:9) Mr V. B. Malambo, S. C., of Malambo & Co. JUDGMENT Chirwa, JS, delivered the Judgment of the court. Case referred to: 1. Monze Diocese Vs Mazabuka District Council, SCZ • No. 16 of 2005 This is an appeal from the decision by the Lands Tribunal which declared that the offer by the Commissioner of Lands of Stand No. 22756, Lumumba Road to the appellant, CETINA TRANSPORT LIMITED, was, irregular, null and void, and recommended that certificate of title issued to the appellant (cid:9) -J2- and the 99 year lease relating to the said stand be cancelled. The judgment arises from the complaint filed by the respondent METRO INVESTMENTS LIMITED, in which it sought the Lands Tribunal's intervention so as to order that the allocation of Stand No. 22756, Lumumba Road by the Commissioner of Lands to the appellant be declared null and void and that the respondent was entitled to be offered the said stand; an order that the appellant should invite the respondent on the proposed investment on the stand and the development already existing and an injunction restraining appellant from carrying on with any construction work on the said stand until the full and final determination of the matter. The facts from the affidavit evidence and the oral evidence before the Lands Tribunal show that both the appellant and the respondent have Certificate of Title to the stand in issue. We do not intend to go into the history of this stand in view of the stand we take. Also we do not wish to go into details of the three grounds of appeal advanced and argued in this matter. -J3- We note that this matter was commenced in the Lands Tribunal before our decision in the case of MONZE DIOCESE VS MAZABUKA DISTRICT COUNCIL(1) in which we held that where land has a Certificate of Title, the Lands Tribunal had no jurisdiction and the Lands Tribunal cannot cancel a Certificate of Title as this is the preserve of the High Court under the Lands and Deeds Registry Act. The issues raised by Mr Malambo, S. C. that the orders of this court in SCZ 19/1999 were not complied with by the Commissioner of Lands are all issues that fell to be decided by the High Court. As was conceded and submitted by the State Counsel, this is a proper case to be sent to the High Court for the determination of all issues raised and not the Lands Tribunal. We therefore allow this appeal and remit the case to the High Court for the determination of issues raised before the Lands Tribunal. Costs will abide the results in the High Court. D. K. CHIRWA SUPREME COURT JUDGE -J4- S. S. SILOMBA SUPREME COURT JUDGE C. S. MUSHABATI SUPREME COURT JUDGE 40