Charles Ndeketeya v James Njobvu and Ors (2018/HP/1922) [2021] ZMHC 140 (24 February 2021)

IN THE HIGH COURT FOR ZAMBIA 2018/HP/1922 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF: ORDER 113, RULE 1 OF THE RULES OF THE SUPREME 1999 FARM No. 10612 LUSAKA BETWEEN: CHARLESNDEKETEYA APPLICANT AND JAMES NJOBVU ALICK NGULUBE CHRISTOPHER NBOVU CHARLES MUSUMALI LOT! KA WISH! ENELES SHIKISH AGNESS TEMBO 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT 6TH RESPONDENT 7TH RESPONDENT PHILIMON BINALI (LATE) EDWARD BINALI PEPHIAS MUMBA KAONGOLA FAMILY JUBECK MWANZA DAVVIDE NJOBVU BASHA DOREEN LUPIYA KAWISHI ACLINA KAWISHI gTH RESPONDENT 9TH RESPONDENT 10™ RESPONDENT 11 TH RESPONDENT 12TH RESPONDENT 13TH RESPONDENT 14™ RESPONDENT 15TH RESPONDENT 16TH RESPONDENT BEFORE HON. MRS. JUSTICE G. MILIMO - SALASINI IN CHAMBERS 24TH FEBRUARY,2021. For the Applicant: Ms. E. L. Sitali, Messrs. Mulenga Mundashi Kasonde Legal Practitioners For the Respondents: In Person JUDGMENT 1.0 Authorities Referred to: Cases Referred to: 1. Sailas Ngowani and 6 Others v. Flamingo Farm Limited (Selected Judgment No. 5 of 2019); 11. Oscar Chinyanta & 31 Others v. Alasia Building Construction Limited and Tap Zambia Limited (SCZ Appeal No. 158 of 2015 111. African Banking Corporation (T / A Bank ABC) v. Plinth Technical Works Limited & Others (SCZ Judgment No. 28 of 2015) (Unreported) 1v. Vangelatos v. Metro Investments Limited & Others SCZ/8/122/2012 v. Hiteshbhai Patel v. Agyen Frempong Kofi & Agyen Frempong Osei (SCZ Appeal No. 13 of 201 7) v1. Benjamin Yorum Mwila v. Victor John Brandury (SCZ Judgment No. 18 of 2013) vn. Hongling Hing Building Company Limited v. Zamcapital Enterprises Limited (For National Electronics Retail Limited) 2010/HP/439 v111. Liamond Choka v. Ivor Chilufya (2002) ZR 33 ix. African Banking Corporation Zambia (T / A Atlas Mara) v. Mattania Investments Limited & 4 Others (CAZ Application No. 73 of 2019) x. Kenneth Madungwe & Another v. Albatross Mining Limited 2019/HP/0763 x1. Chief Mwanatete v. Innocent Munyika Lushita & Mweene Muntondo 2014/HP/ 1043 xu. Madison Pension Trust Fund v. Mohammed Abou Khalil 2017 /HP/0763 x111. Sailas Ngowani and 6 Others v. Flamingo Farm Limited (SCZ Judgment No. 8/214/2015) xiv. Anti-Corruption Commission v. Barnet Development Corporation Limited (S. C. Z. Judgment No. 5 of 2008) xv. Greater London Council v. Jekins (1975) 1 W. L. R 155 1.1 Legislation and Other Sources Referred to: 1. Order 113 rule 1 of the Rules of the Supreme Court of England 1965 (White Book) 1999 Edition, Volume 1 11. Order 28 rule 8 ( 1) of the Rules of the Supreme Court of England 1965 (White Book) 1999 Edition, Volume 1 111. Order 41 rule 5 (1) (e) and rule 5 (2) of the Rules of the Supreme Court of England 1965 (White Book) 1999 Edition, Volume 1 1v. Order 5 Rules 16, 17 and 18 of the High Court Rules Chapter 27 of the Laws of Zambia v. Order XXX rule 8 of the High Court Rules Chapter 27 of the Laws of Zambia v1. Section 3 (4) of the Lands Act Chapter 195 of the Laws of Zambia v11. Section 33 and Section 34 ( 1) of the Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia 2.0 Introduction 2.1 The applicant's application rruses important issues for determination by the Court. The issues include the general effect of obtaining a certificate of title on a piece of land located in a customary area; the effect of producing to the affidavit documents authored by a person other than the affiant or a person not party to the proceedings; whether it is tenable to grant an order of possession to the Applicant where his title to the land in question is disputed and challenged by the Respondents on grounds of failure to follow procedure when title was obtained; whether it 1s necessary to transfer a matter from cham.bers to open court where the Applicant fails to contest critical issues raised in an Affidavit in Opposition; and whether it is tenable to grant the relief for the cancellation of title sought by the Respondents in their Affidavits in Opposition. 3.0 Background of the Matter as Contained in Court Process 3.1 This is an application by the Applicant commenced by way of Originating Summons for an Order for Summary Possession pursuant to Order 113 Rule 1 of the Rules of the Supreme Court of England 1965 (White Book) 1999 Edition, Vol~ 1 (hereinafter White Book). The Originating Summons was accompanied by an Affidavit in Support which was filed on 5 th November 2018. The Affidavit was sworn by one Charles Ndeketeya, the Applicant herein, who deposed that he was the registered title holder of Farm No. 10612 situate in the Rufunsa District of the Lusaka Province of the Republic of Zambia by virtue of having been issued with certificate of title No. 49979 on 19th April 2006. 3.2 The Applicant stated further that he had been paymg ground rent in r espect of the property in question. He stated that surprisingly when he visited the subject land he discovered that the 1st Respondent who is a village headman of Mwanduba village in which the property in question is situate, had occupied his property without his consent. That the 1st Respondent had been distributing the property to the Respondents and other unknown persons in his capacity as village headman. The Applicant vowed that the Respondents did not have authority over his property by virtue of a certificate of title which is currently vested in him, which is still valid and subsisting. 3.3 In closing the Applicant stated that despite several demands for the Respondents to vacate the property, the Respondents have continued occupying the property to his detriment. The Applicant disclosed that he was seeking vacant possession of the property as he intended to utilize the same for purposes of divers farming. He therefore sought the indulgence of the court to grant him an Order for possession against the Respondents, to restrain them from continued trespass or occupation of the land in issue. 3.4 In reaction to the originating process which was served on the Respondents on 11th January 2019, the Defendant filed an initial Affidavit in Opposition to the Affidavit in Support on 10th May 2019. The Affidavit in Opposition was sworn by the 1st Respondent on behalf of all the Respondents. He deposed that although the Applicant claimed to be the registered owner of Farm No. 10612 in Mwanduba village, there was no record in the Royal Highness Mphansha-l's palace to show that the Applicant applied for or was given the property in question. The 1st Respondent deposed further that the Applicant obtained title to the property in question without his knowledge and without the Chieftainship's consent. It was further disclosed that a search at both Rufunsa District Council and Chongwe Municipal Council availed that there were no records for the property in question. The 1st Respondent vowed further that the Applicant did not follow the established procedure to obtain title deeds in a customary area under the authority of the village headman and the chief. 3.5 The 1st Respondent swore that Mwanduba village was given to the Respondents by Chief Mphansa in 1942. That at the time of occupation of the land, Charles N deketeya's forefathers were not part of the villagers who were given Mwanduba village. Further that according to the records maintained by the 1st Respondent for Mwanduba village, Charles Ndeketeya's forefathers came into the village as hunters. That Charles Ndeketeya's father married one of the daughters of the village and consequently he was given a small portion for farming for two years on condition that the portion would be grabbed from him in accordance with the law of the chiefdom if he did not use it for farming. The Affiant also disclosed that Mr. Penyani the uncle to the Applicant and Mr. Ndeketeya Senior and John Ndeketeya, were not in support of the claim by the applicant. 3.6 The 1st Respondent narrated further in the Affidavit in Opposition that Mwanduba village has been home for both the aged and the young since 1942 who would have nowhere to go once displaced by the order being sought by the Applicant. The Respondents beseeched the court's indulgence to restrain the Applicant from executing an order of possession against them on ground that the contents of the Affidavit in Support lacked merit and were meant to mislead the court in order to deprive the Respondents of the land. The Respondents therefore also called the Court to grant any relief deemed fit. 3 . 7 In view of the foregoing, the Respondents produced and exhibited to the Affidavit in Opposition a letter from Futwe Royal Establishment purportedly authored and signed by Chieftainess Mphanshya and therein marked JNl. In the said letter her Royal Highness confirmed that she has no records confirming that the Applicant was given a title deed in her chiefdom. That since the matter was commenced, Her Royal Highness has called on the Applicant to appear before her but he has never turned up to her palace. Her Royal Highness confirmed that according to her, the village headman and the elders of the village; Mr. Ndeketeya came into Mwanduba village in 1960 due to a marriage and that upon his request he was given a plot to farm on. That at the time Mr. Ndeketeya was given the said plot for a farm, he found about sixteen households already settled in the village since 1942. Her Royal Highness confirmed that her Chiefdom, Rufunsa District Council and Chongwe Municipal Council have no records for Mr. Charles Ndeketeya's title deed. 3.8 Also exhibited to the Affidavit in Opposition and marked JN2 was a letter by the 1st Respondent seeking the land commissioner to revoke the certificate of title granted to the applicant on grounds that the Applicant did not follow the right procedure when acquiring title given that both the village headman and the chieftainess were not consulted by the Applicant. This invariably meant tha t the h eadman and the chief did not consent to the title b eing issued. Also on ground that both Rufunsa District Council and Chongwe Municipal Council did not have records on how the Applicant obtained the certificate of title and that the certificate of title affects about 271 households who stood to be affected if the court granted the order sought by the Applicant. 4.0 Proceedings before the Judge in Chambers 4.1 The matter first came up for a status conference on 6 th February 2019 at 11 :30am during which session Ms. E. L. Sitali of Messrs . Mulenga Mundashi Kasonde Legal Practitioners appeared as Counsel for the Applicant while the Respondents appeared in person and they were collectively represented by the 1st Respondent and the 9 th Respondent and two other respondents. It was confirmed during Status Conference that the Respondents had not filed their Affidavit in Opposition. Nonetheless, the Court set 1st April 2019 at 10:00am as date of hearing of the Applicant's application. On 1st April 2019, despite having filed an Affidavit in Opposition on 10th May 2019, the Respondents who were this time represented by the 1st Respondent and Collins Mululi sought an adjournment on ground that they were seeking to engage Counsel from the Legal Aid Board. The matter was thus adjourned to 24th May 2019 for the hearing of the application. 4.2 On 24th May 2019 when the matter came up for hearing, Counsel for the Applicant informed the Court that the Affidavit in Opposition which was filed on 10th May 2019 was only brought to the Applicant's attention on 14th May 2019, as such Counsel sought a short adjournment to be allowed to file an Affidavit in Reply. The application for an adjournment was objected to by the Respondents on ground that they were coming from far areas outside Lusaka. They asserted that they had been to the Court for the third time this time without the matter proceeding, as such they were already facing transport challenges. Notwithstanding, the objection by the Respondents, an adjournment was yet again allowed and the matter was rescheduled to be heard on 8th August 2019. 4.3 When the matter came up for hearing on 8 th August 2019, Counsel for the Applicant sought for an adjournment for 30 days to allow the Applicant to file an Affidavit in Reply. The Respondents on the other hand stated that they were ready for the matter to proceed. Nonetheless, I granted the application and adjourned the matter to the 11 th September 2019 for hearing. On the 11th September 2019, the m atter came up for the hearing of the application at 12:00pm, however, Mrs. P . M. Likonde, Counsel, who came to stand in on behalf of Ms. E . L. Sitali, sought an adjournment on ground that Counsel seized with conduct of the matter was appearing b efore Hon. Justice Musona for a different trial which started at 11 :30am. The Respondents objected the application to adjourn on ground that they were ready to proceed, at the same time they felt that the Applicant kept seeking one a djournment after the other to the detriment of the Respondents who were already facing challenges in terms of transport and that it was also farming period, the Respondents preferred the matter to be settled early to allow them to attend to farming. The matter was yet again adjourned to 4 th March 2020 for the hearing of the application which date was later rescheduled to 3 rd June 2020 and again rescheduled to 27th July 2020 in view of the advent of the pandemic (COVID 19). 4.4 When the matter came up for hearing of the Applicant's application on 27th July 2020, Mr. Chakoleka, Counsel, who came through on behalf of Ms. E. L. Sitali, informed the Court that upon review of the matter the Applicant was of the view that the proceedings for summary possession pursuant to Order 113 of the White Book, the Court was restricted to consider only issues relating to possession and not any other matters. Therefore, the Applicant found it unnecessary to file an Affidavit in Reply on ground that the contents of paragraphs 5,6,7,8,9,10,11,l2,13,14,15,l6, and 17 of the Affidavit in Opposition were extraneous or outside the application. Counsel contended further that the contents of paragraphs 5 and 6 of the Affidavit in Opposition were hearsay as they were based on the letters exhibited as JN 1 and JN2 which were authored by individuals who were not part to the proceedings as such they were bound to be expunged otherwise a request was made to the Court for the authors of the letters to be cross examined. 4.5 In reaction to the submissions by Counsel for the Applicant, the Respondents who were this time represented by Collins Mululi and Edward Zimba, submitted that the Applicant has always refused to go to the Chiefteness' palace to resolve the issue and that they were tired of coming to the Court time after the other when while the Applicant kept adjourning the matter. 4.6 In view of the submissions by Counsel for the Applicant, the Court directed the Respondents to approach the Chiefteness for further and better particulars in relation to the dispute and to file a Further Affidavit in Opposition thereafter. Consequently, the Respondents filed Further Affidavit in Opposition to the Affidavit in Support of Originating Summons for an Order for Possession. The Further Affidavit in Opposition whose contents were not any different from those of the initial Affidavit in Opposition was sworn by the 1st Respondent in his capacity as the headman of Mwanduba village. Exhibited to the Further Affidavit and therein marked JNl was a letter purportedly authored and signed by Her Royal Highness Chieftainess Mpanshya 1s t which was also exhibited in the initial Affidavit m Opposition and has already been referred to. 4. 7 Exhibited also although not marked and not specifically referred in the Further Affidavit in Opposition was a document titled The Briefing History of Mwanduba Village. The document contains among other information a narration that the late Mr. N deketeya was originally from Ukanga village (Shela) but sought for a hand in marriage from one of the daughters in Mwanduba village and that he also asked for a land for a co-operative, not for title. Further that in 1975, the late Mr. Ndeketeya attempted to put traditional land on title and took the 8 th Responden~ to Court, but he lost the case and he was consequently advised by the Court to find land in Lusaka West or Makeni which he could put on title. Suffice it to state here that the Court's decision referred to was not exhibited and that the exhibited document for the history of the land, disclosed no author except it was commissioned as a true copy of the original and it was also date stamped by Chief Mpanshya - 1 on 14th September 2020. 4.8 When the matter came up on 14th October 2020 at 11:00am, the Applicant's Counsel was a Mr. P. Chomba, who appeared on behalf of Ms. E. L. Sitali while the Respondents appeared in person and Mr. J. Mbewe and Mr. E. Binali appeared on behalf of the Respondents. On this day the Applicant confirmed that it was in receipt of Further Affidavit in Opposition but applied for leave to apply. The Respondents did not object to the application for leave to reply. I therefore directed the Applicant to file a Reply within 21 days by 29th October 2020 and for the Respondent s to respond by 12th November 2020. I reserved the judgment to 27th November 2020. Suffice it to mention here that up to the even date, the Applicant has not filed any Affidavit in Reply. 5.0 Issues for Determination 5.1 I have carefully considered the Applicant's application and the evidence adduced by both parties in their respective affidavits. The kernel of the dispute herein is whether the Applicant should be granted the order of possession amidst the reaction by the Respondents to the effect that the Respondent was not granted the piece of land in respect of which he obtained title; also in the face of the assertion by the Respondents that the Applicant did not follow the correct or right procedure for obtaining title on a piece of land located in a customary area. In a bid to resolve the dispute between the parties, the Court will address its mind to the general effect of a obtaining a certificate of title in a customary area; the grounds on which title can be cancelled and thereafter determine whether in the circumstance it is necessary to grant the Order sought by the Applicant or the reliefs sought by the Respondent in opposition to the Applicant's application. 5.2 The Law on the Effect of a Certificate of Title 5.3 The law on the effect of a Certificate of Title is found in Section 33 of the Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia which provides that: "A certificate of title shall be conclusive as from the date of its issue and upon and after the issue thereof, notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the President or otherwise, which but for Parts 111 to VII might be held to be paramount or to have authority; the Registered Proprietor of the land comprised in such Certificate of shall, except in case of fraud, hold the same subject only to such encumbrances, liens, estates or interests as may be shown by such Certificate of Title and any encumbrances, liens, estates or interests created after the issue of such Certificate as may be notified on the folium of the Register relating to such land but absolutely free from all other encumbrances, liens, estates or interests whatsoever: (a) Except the estate or interest of a proprietor claiming the same land under a current prior Certificate of Title issued under the provision of Parts III and VII; and (b) Except so far as regard the omission or misdescription of any right of way or other easement created in or existing upon any land; and (c} Except so far as regards any portion of land that may be erroneously included in the Certificate of Title, evidencing the title of such Registered Proprietor by wrong description of parcels or of boundaries. 5.4 Further 1n Anti-Corruption Commission v. Barnet Development Corporation Limited 1 the Supreme Court held that "under Section 33 of the Lands and Deeds Registry Act, a Certificate of Title is conclusive ownership of land by a holder of title". 5.5 In the case of Sailas Ngowani and 6 Others v. Flamingo Farm Limited (SCZ Judgment No. 8/214/2015)2 the Supreme Court h ad an opportunity to pronounce itself on the effects of obtaining a title deed in a customary area. The Supreme Court held that "upon conversion of tenure customary practices cease to exist on the land and the title holder is only obliged to follow the terms on which title is given". 5.6 In view of the authorities cited and referred to in paragraphs 5.3 to 5.5, it is my initial finding that the Applicant was right and in order to have been paying ground rent in respect of the piece of land in question, given tha t he allegedly converted customary tenure to statutory tenure. This is so because the customary practices ceased to exist on the piece of land the moment the Applicant obtained title. 6.0 Whether the Documents Produced to the Affidavit in Opposition and Marked JNlt JN2 and the one title Briefing History of the Land, Amount to Hearsay Evidence. 6.1 In answering the above question, I will be guided by the law and principles governing production of evidence via affidavits in as far as chamber matters are concerned. 6.2 The document marked JNl and produced to the Affidavit in Opposition and the Further Affidavit in Opposition is a letter authored by Chieftainess Mpanshya addressed to this Honourable Court. The essence of the letter is to explain that Her Royal Highness' chiefdom does not have records on how the Applicant obtained certificate of title in respect of a customary piece of land located in her chiefdom. The letter while explaining the history of Mwanduba village, also indicates that the Applicant has been summoned three times to appear before Her Royal Highness to exculpate himself in relation to the certificate of title but that he has never turned up on any of the three times. 6.3 In terms of JNl which was authored by Her Royal Highness and addressed to the High Court, I would prima facie hold that its production by the 1st Respondent amounts to hearsay as the chief is not party to the proceedings. This is also because the chief was not before court as a witness to vouch for the truthfulness of the contents of the letter. However, the law provides for instances when a deponent can depose to the affidavit based on the information provided by those not party to the proceedings. To this effect Order 5 Rule 17 and 18 of the High Court Rules Chapter 27 of the Laws of Zambia provides as follows: "rule 17, when a witness deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts, and circumstances forming the grounds of his belief. Rule 18, when the belief of a witness is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of his belief". 6.4 In terms of the White Book, Order 41 rule 5 (2) provides that: "an Affidavit sworn for purposes of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof'. In African Banking Corporation Zambia (T / A Atlas Mara) v. Mattania Investments Limited & 4 Others (CAZ Application No. 73 of 2019)6 while making reference to Order 41 rule 5 (2) of the White Book, the Court of Appeal observed that: "the general rule is that an affidavit may only contain such facts as the deponent is able of his own knowledge to prove. In exceptional circumstances, an affidavit can contain information of beliefs that the deponent is able to prove but not of his personal knowledge". 6.5 It would appear that the 1st Respondent cannot be faulted for producing JNl only on ground that the author of the said d ocument is not party to the proceedings. The production of JNl falls in the exceptions to the general rule as provided for in the preceding two paragraphs. While Order 41 rule 5 (2) of the White Book relate to interlocutory proceedings, the synonymous provisions 1n rule 1 7 and 18 of Order 5 of the High Court Rules Chapter 27 of the Laws of Zambia, do not . restrict the use of information based on beliefs to interlocutory proceedings only. Therefore, the Ruling of the Court of Appeal cited in paragraph 6.4, above, is not devoid of relevance to these proceedings. The belief of the 1st Respondent in the contents of JN 1 is based on the fact that he approached and consulted Her Royal Highness to establish whether the Applicant obtained her consent to obtain title deed to a piece of land in her chiefdom. To which Her Royal Highness' response was in the negative. The 1st Respondent has disclosed Her Royal Highness as the source of his information. Further, the information provided by Her Royal Highness is one which the 1st Respondent can prove as well in his capacity as a village headman of Mwanduba village. Therefore, the production of JNl cannot be objected to on ground of amounting to hearsay evidence. 6.6 The document marked JN2 and produced only to the initial Affidavit in Opposition is a letter authored by the 1st Respondent, the village headman of Mwanduba village. The letter was addressed to the Commissioner of Lands in Lusaka. In that letter the 1st Respondent was seeking for the cancellation or revocation of the certificate of title issued to the Applicant on grounds that, 1). The Applicant did not follow the right procedure when obtaining title to a piece of land located in a customary area, 2). That a follow up with the current chieftainess indicated that the Applicant did not obtain consent from the chief prior to obtaining title to a customary piece of land. 3). That 271 households on the said piece of land stand to be displaced by virtue of the title being obtained by the Applicant. 4). That both Rufunsa District Council and Chongwe Municipal Council, have no records for the land in question. 6 .7 In terms of JN2, according to Order 5 rule 16 of the High Court Rules Chapter 27 of the Laws of Zambia, the general rule is that; "every affidavit shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or information which he believes to be tnte". In terms of the White Book, Order 41 rule 5 ( 1) (e) provides that: "subject to any Order made under Order 38 rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove". In the instant case, the Respondents chose the 1st Responden t , who is the village headman of Mwanduba village, to swear affidavits. In my view, their choice of him to swear affidavits, was right as is one of the individuals who constitute the local authority of the village in addition to the chief. JN2 was authored and produced to the Affidavit in Opposition by the 1st Respondent and addressed to the Commissioner of Lands. I therefore find that JN2 which was referred to in paragraph 6 of the Affidavit in Opposition, does not amount to hearsay evidence as it was authored and signed by the same person who has produced it to the affidavit. Who in fact is a party to these proceedings. Therefore, the document is admissible and cannot be expunged from evidence. 6.8 Lastly on this part, unlike JNl and JN2, the document titled The Briefing History of Mwanduba Village was only produced to the Further Affidavit in Opposition. It should be on the record that the said document mentions no author. However, the document was date stamped by Her Royal Highness, Chief Mpanshya of Mwanduba village. The said document was also commissioned as true copy of the original. Suffice it to mention here that the full details of JNl, JN2 and the document subject of discussion in this particular paragraph have all been disclosed elsewhere in this Judgment. 6.9 The production of the document referred to in paragraph 6.8 is irregular as it was not specifically marked and referred to in the Further Affidavit in Opposition. Further much as the content of the same document is the same as the contents of the affidavits and those of JNl and JN2, its production fails on ground of being hearsay. This is because the document mentions no author and the deponent has not disclosed the circumstances through which he obtained it. 7.0 Grounds on Which a Certificate of Title Can Be Cancelled and Consequences of Failure to File an Affidavit in Reply 7.1 Under this heading, I will deal with the grounds on which certificate of title can be cancelled together with the consequences of the Applicant's failure to file an Affidavit in Reply when in the circumstance it had become necessary. This is so because the Applicant ought to have responded to the new issues that were raised by the Respondents in their Affidavits in Opposition as they were cardinal to the determination of this matter. 7.2 Section 34 (1) (c) of the Lands and Deeds Registry Act Chapter 185 which provides for the grounds on which a certificate of title can be cancelled states that: "No action for possession or other action for the recovery of any 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 circumstances: (a) the case of a mortgage as against a mortgagor in default; (b) the case of the president as against the holder of a state lease in default; (c) the case of a person deprived of any land by fraud, as against the person registered as proprietor of such land through fraud, or against deriving otherwise than as a transferee bona fide for value from or through a person so registered through fraud ... " 7.3 In addition to the law cited in p aragraph 6.1 , in the case of Anti-Corruption Commission v. Barnet Development Corporation Limited and t he case of Sailas Ngwani & 6 Others v. Flamingo Farm Limited cited in p aragraphs 5.4 and 5.5 r esp ectively, the Supreme Cou rt h eld tha t: "fraud as specified in s33 of the Lands and Deeds Registry Act does not provide the only pathway by which a certificate of title maybe cancelled. Other transgressions of the law such as circumvention of the procedure prescribed in the law which would render null and void the allocation of land, would be ;ust as fatal". 7.4 On th e other h and, the con ditions on which th e President can alien ate land s itu ate in a cu stom ary area are set ou t in Section 3 (4) of the Lands Act Chapter 195 of the Laws of Zambia wh ich provides th at: "Notwithstanding subsection (3) the president shall not alienate any land situated in a district where land is held under customary tenure - (a) Without taking into consideration the local ~ customary law which is not in conflict without this Act; (b) without consulting the chief and the local authority in the area in which the land is situated, and in the case of a game management area, and the Director of National Parks and Wildlife Service, who shall identify the piece of land to be alienated; (c) without consulting any other person or body whose interest might be affected by the grant; and (d) if an applicant for a leasehold title has not obtained prior approval of the chief and the local authority within whose area the land is situated (underlining for emphasis)" 7.5 I h ave indica ted in the introdu ctory p aragraph and in paragraph 5 .1 th at beyond the reliefs b eing s ought by the Applicant, the Respondents are also s eeking cancellation of the certificate of title and any other reliefs that this court may deem fit. The Respondents, through the 1s t Respondent, the village headman, who swore the initial Affidavit in Opposition, asserted in paragraphs 5, 6,7, 8 and 19 that there was no record in the Royal Highness Chieftainess Mpanshya - 1 indicating that the Applicant applied for or was granted title to the property in question. That there were no records at the Rufunsa District Council and at Chongwe Municipal Council showing that the Applicant was granted certificate of title. Further that the Applicant did not follow procedure of how a certificate of title must be obtained on a customary area within the chiefdom as he obtained the same without the knowledge of the chief and that of the village headman. The Respondents have also asserted that the Applicant has been invited to the Chiefdom to deliberate on the issue but that he has declined to turn up to the palace on three occasions. The contents of the Affidavit in Opposition were later reflected in the Further Affidavit in Opposition filed by the Respondents on 18th September 2019 and sworn by the 1st Respondent. 7.6 When the matter came up for hearing of the Applicant1s application on 24th May 2019, the Applicant successfully sought an adjournment to file an Affidavit in Reply to the initial Affidavit in Opposition. The matter was therefore adjourned to 8 th August 2019 to enable the Applicant file an Affidavit in Reply. When the matter came up on the said date the Applicant again sought an adjournment for further Thirty (30) days to allow it extract the file that showed title to the property and thereafter file an Affidavit in Reply. Consequently, the matter was adjourned to 1 Ph September 2019 for the hearing of the applications. 7. 7 When the matter came up on 11th September 2019 the Applicant again sought an adjournment on ground that Counsel seized with conduct of the matter was attending to a trial before a different court. An adjournment was thus granted and the matter was adjourned to 4 th March 2020 for the hearing of the application. Thereafter the hearing date was rescheduled to the 3 rd June 2020 and to 27th July 2020. On 27th July 2020 when the matter came up for hearing, the Applicant indicated to the Court that it was not filling an Affidavit in Reply on ground that the contents of paragraphs 5,6,7,8,9, 10, 11, 12, 13, 14, 15, 16 and 17 of the initial Affidavit in Opposition were extraneous to the proceedings under Order 113 of the White Book and as such they ought to be disregarded or expunged from the Affidavit in Opposition. Further that exhibit JNl which was a letter authored by her Royal Highness, constituted hearsay as she was not part to the proceedings. The Applicant sought for this Honorable Court to allow the author of the letter to be cross-examined. 7.8 On 27th September 2020, the Respondents informed the Court that they needed to consult Her Royal Highness for further and better particulars in relation to the matter and to file Further Affidavit in Opposition. The Court therefore adjourned the matter to 14th October 2020 for the hearing of the application. When the matter came up on the said date the Applicant sought an adjournment on ground that it intended to file an Affidavit in Reply to the Further Affidavit in Opposition. While adjourning the matter to 27th November 2020 for the delivery of the Judgment, the Court directed the Respondents to file its Affidavit in Reply by 29th October 2020. Unfortunately, and of course at the Applicant's own peril or benefit , the Affidavit in Reply to the Further Affidavit in Opposition has never b een filed . 7. 9 In view of my finding on the issue discussed in paragraph 6.0, above, it is clear that save for the d ocument marked The Briefing History of Mwanduba Village, the Affidavits in opposition did not contain hearsay evidence. This is so because, in the main, the issue that the Respondents raised was on a point of law. They questioned whether the Applicant followed the right procedure when he obtained a certificate of title in respect of a property located in a customary area. They asserted that the Applicant did not consult the chief nor the village headman. The Respondents even went beyond to indicate that both Rufunsa District Council and Chongwe Municipal Council did not have records for the title in question. In my view, the Applicant ought to have responded to these issues via an Affidavit in Reply as they were all based on points of law, which is section 3 (4) of the Lands Act. 7 .10 Further, I also pause here to consider the effect of a party's failure to file an Affidavit in Opposition and in Reply when the same is necessary. It is generally trite law that a party who fails to respond to the disposition to the affidavit by the opponent, when such a response is necessary, the failure to do so is at that party's own peril as the contents of the affidavit not opposed to are deemed to have been conceded. I am fortified by the holding of this Honourable Court in the case of Madison Pension Trust Fund v. Mohammed Abou Khalil 2017 /HP/07633 where it was observed that: " a party who Jails to file an affidavit in opposition, when the same is necessary is by law deemed to have accepted the facts in the affidavit and such unchallenged facts are treated as having been established before the Courts". 7 .11 When it comes to the issue of filling an Affidavit in Reply I wish to observe that the filling of an Affidavit in Reply is subject to leave of court being granted. I am fortified in my observation by the holding of this court in Kenneth Madungwe & Another v. Albatross Mining Limited 2019/HP/07634 that; "strict rules of practice require leave of court to be obtained prior to the filling of an affidavit in reply". The rationale for the requirement for leave is to avoid parties from repeating the contents of the Affidavit in Support but to restrict the Reply to the new things raised in the Affidavit in Opposition. To this effect it was held by this honorable court in Chief Mwanatete v. Innocent Munyika Lushita & Mweene Muntondo 2014/HP/10435 that; "an affidavit in reply will only be allowed where the Affidavit in Opposition raise issues that could not have been anticipated when preparing an affidavit in support". 7.12 In the instant case the Applicant expressed interest or desire to file an Affidavit in Reply to the initial Affidavit in Opposition and to the subsequent Further Affidavit in Opposition. The record will show that the Court was more than lenient that it granted the Applicant enough latitude to file an Affidavit in Reply to the initial Affidavit in Opposition and to the Further Affidavit in Opposition. Ideally, in the first place the Applicant indicated that the delay to file an Affidavit in Reply was necessitated by the difficulties it was facing to extract a file which contained , details for the certificate of title. However, it later transpired that, on second thought the Applicant abandoned the filling of an Affidavit in Reply and opted or resolved to attack the Affidavit in Opposition on ground that the same contained hearsay evidence and/ or information which was extraneous the application under Order 113 of the White Book. I have already stated that the assertions by the Applicant that the issues raised by the Respondents questioning the procedure that the Applicant followed when obtaining title in a customary area, cannot amount to hearsay. My position is vindicated by the very fact that the issue of procedure that was raised by the Respondents boarders absolutely on points of law for the procedure that is supposed to be followed when obtaining title in a customary area as per Section 3 (4) of the Lands Act cited and referred to above. 7 .13 It is further my position that, the Affidavit in Opposition, raised issues which were not anticipated by the Applicant when he prepared an Affidavit in Support of Summons for an Order for Summary Possession. As such it was necessary for the Applicant to file an Affidavit in Reply to the Affidavit in Opposition to react to the assertions raised by the Respondents to the effect that the Applicant did not follow procedure within the chiefdom. It would appear to me that the Applicant did not have any evidence to counter the assertions raised by the Respondents. That is why after seeking a number of adjournments in guise of attempting to look for files for the extract of the t itle which was never found, on second thought, Counsel resorted to attack the Affidavit on points of law. In view of the position I have taken in paragraph 7.12, it is my finding that the failure by the Applicant to file an Affidavit in Reply in the circumstance was only to its detriment as will b e shown in the latter parts of this Judgment. 7.14 By failing to respond to the issues raised by the Respondents in the Affidavits in Opposition, the Applicant left the Court in suspense and speculation as to whether he followed the right procedure when he obtained certificate of title in a customary area. In the absence of an Affidavit in Reply, and in view of my findings in the preceding paragraphs, it is my finding that the Applicant did not follow procedure when he obtained title in a customary area, contrary to Section 3 (4) of the Lands Act. 8.0 Whether This Matter Was Properly Commenced by the Applicant 8.1 The law governing the commencement of proceedings for summary possession is to be found in Order 113 Rule 1 of the Rules of the Supreme Court of England 1965 (White Book) 1999 Edition, Volume which provides that: ''Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provi.sions of this order". 8.2 The editorial introduction at paragraph 113/0/2 of the White Book on the other hand provides that: "the circumstances in which the procedure can be used are restricted to cases where the land is occupied by persons who have entered or remain in possession of the land without the licence of the person claiming possession". 8.3 Further the case Greater London Council v. Jekins ( 1975) 1 W. L. R 1557 which is cited at p aragraph 113/8/2 of the White Book shows that; "a landlord is entitled to use the summary proceedings under Order 113 if he can demonstrate his right to do so and the court has no discretion to deny such use merely on the grounds that the proceedings are rapid and summary and that the defendants did not enter as squatters". 8.4 In Liamond Choka v. Ivor Chilufya (2002) ZR 338 it was h eld by the Sup reme Court inter alia that the summary procedure under Order 113 can only be suitable for squatters and others without any genuine claim of right or who have since been transferred into squatters. In Hongling Hing Building Company Limited v. Zamcapital Enterprises Limited (For National Electronics Retail Limited) 2010/HP/4399 it was also observed by Ho. Jus tice Dr. Matibini, that Order 113 of the white book relates to summary proceedings for possession of land. Typically, Order 113 is resorted to in circumstances where land is occupied by persons who have entered into or remained in possession of the land without the licence, or consent of the person claiming possession. The summary procedure is discouraging where the plaintiff is aware of the real dispute with the occupier. 8.5 Recently, in Oscar Chinyanta & 31 Others v. Alasia Building Construction Limited and Tap Zambia Limited .. , (SCZ Appeal No. 158 of 2015 10 the supreme Court held that ; 1'it is clear that the procedure in Order 113 Rule l applies only to the category of people prescribed in the rule. The first category is that of people who have entered into occ-upation of the property without the licence or consent of the person entitled to occupation or the predecessor in title. The second category applies to people who have entered into occupation with the licence or consent of the person entitled to occupation but have remained in occupation, without the licence or consent of the person entitled to possession or his predecessor in title". 8.6 It can b e a sserted clearly that in view of Order 113 rule 1 of the White Book, th e proceedings h erein were properly commenced. However, due to the facts surrounding this particular ca se th e matter had better been commenced by writ of summons. This is in view of th e law cited in paragraph 8 .4 to th e effect th at su mma ry proceedings are only suitable in instances where the occupiers have no genuine claim of right or who have been transferred to squatters. The circumstances of this case are such that the Respondents appear to have a claim of right to the piece of land in question. This is so because the Applicant found the Respondents settled on the piece of land in question by the time he acquired title to the property. Therefore, the Respondents cannot be deemed to have entered into the piece of land without the Applicant's consent or without licence nor can they be said to have turned into squatters. Lastly on this part, the Respondents, have disclosed that in 1975, the said piece of land was subject to court proceedings when the Applicant's late father prompted to obtain a certificate of title but he was stopped from doing so by the Court. Although the Judgment of the Court was not disclosed by the Respondents, it can be imputed that the Applicant knew beforehand that the land was subject to dispute. Therefore, the matter was not suitable for summary possession as the Applicant knew the clear dispute between him and the occupiers contrary to the law stated in paragraph 8.4, above. 9.0 Should the Matter Have Proceeded as If Commenced by Writ of Summons 9.1 Arising from the position I have given in paragraph 8.6, the last question that begs to be answered is whether this action should have been transferred from chambers to open court and to have been deemed as if commenced by writ of summons. 9.2 In African Banking Corporation (T / A Bank ABC) v. Plinth Technical Works Limited & Others (SCZ Judgment No. 28 of 2015) (Unreported) 11 the Supreme Court held that; "applications by originating summons are appropriate where the decisions depend on constniction of an instrument or statute or the granting of a relief in a mortgage proceeding. The Supreme Court added that the procedure of originating summons is only intended for decisions of simple questions of fact; where there are several confl.icting af(i.davits, such procedure is neither convenient nor expedient". 9.3 On the other hand, in Vangelatos v. Metro Investments Limited & Others SCZ/8/ 122/201212 the Supreme Court held that; "the procedure provide that a contentious matter pleaded in a statement of claim and supported by viva voce evidence is, is an open court matter and should be dealt with as such". 9.4 From the contents of paragraph 9. 2 and 9.3, above, it can be said that where a chamber matter (commenced by originating summons) ceases to b e simple and becomes contentious, the court should make an order that such a matter should be heard in open court and should proceed as if commenced by writ of summons. The court should therefore invoke Order XXX rule 8 of the High Court Rules Chapter 27 of the Laws of Zambia which provides that; ''upon hearing the application the judge may order that a matter be adjourned from chambers into open court for any reason". 9.5 It is noted that while Order XXX Rule 8 gives the court such powers, the same does not prescribe the other steps or the procedure that should fallow in order to have proceedings in an orderly manner. To cure the shortcomings of the cited rule of the High Court, in terms of the practical steps that should be taken, resort should be had to Order 28 Rule 8 (1) of White Book which provide for procedure to the effect that;"where in the case of a cause or matter begun by originating summons, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that any affidavits shall stand as pleadings with or without liberty to any of the parties to add thereto or to apply for particulars thereof" Further, in Hiteshbhai Patel v. Agyen Frempong Kofi & Agyen Frempong Osei (SCZ Appeal No. 13 of 2017) 13 the Supreme Court held that once a matter commenced by originating summons has been ordered to proceed as if commenced by writ and to be heard in open court, the court should issue orders for directions. 9.6 The question that begs an answer herein, is whether the Applicant's matter which was commenced by originating summons had become contentious to warrant the court to invoke the law cited in paragraph 9.4 and 9.5 to deem the matter as if commenced by writ. I have already established that the Applicant eschewed to respond to the critical issues that were raised by the Respondents and to the reliefs that the Respondents sought. The issues raised by the Respondents clearly challenged the Applicant's title by questioning the procedure that he followed when obtaining title on a customary piece of land. The issues raised by the Respondents were clearly on points of law which could not be challenged by alleging that the contents of the Affidavits in Opposition were extraneous or hearsay. 9.7 The Applicant has had more than enough time to file an Affidavit in Reply to address the issues raised by the Respondents but did not do so. In avoiding to do so, the matter did not become contentious as the Respondent provided evidence to their assertions while the Applicant simply held on to the argument that by virtue of the certificate of title being issued 1n his names, the respondents were squatters and ought to be evicted. Unfortunately, he only did harm to himself as in view of the foregoing, his failure to show the procedure he implored to obtain title, should be resolved in favor of the Respondents who asserted that the Applicant did not follow the local procedure on how title should be obtained. It is on this basis that this Honourable Court could not convert this action into an open court one. 9.8 This is so because it is trite law that where evidence in a trial is produced via Affidavits, the witnesses who can be called to testify are the deponents to the Affidavits. In Benjamin Yorum Mwila v. Victor John Brandury (SCZ Judgment No. 18 of 2013) 14 the appellant argued that the trial judge proceeded to render a ruling on the appellant's application to set aside Order for joinder without according him an opportunity to appear before him or to be heard. The Court observed that: "where evidence is adduced by affidavits the witnesses that may give viva voce evidence are the deponents and that the learned trial judge should have accorded the parties a chance to be heard. However, after considering the affidavit evidence and perusing the records the court was of the view that had the learned judge heard the parties he would still have arrived at the same decision". 9.9 In the instant case, even if the matter was ordered to proceed to trial in open court and be deemed as if commenced by writ, the evidence that was going to be adduced by the Respondents was going to be the same. The village headman being party to the proceedings) he could have still testified and shown that the Applicant did not consult the chief and the local authority prior to obtaining certificate of title. The Chief having written a letter to show that the Applicant obtained title without her consent and that of the village headman, she could have still testified to that effect had she been called as a witness at trial. It is therefore my finding that the matter did not become contentious as the Applicant decided not to respond to the issue of procedure on how he obtained title without consulting the chief and the local authority. In the circumstance, it can only be concluded that, his resort to attacking the Affidavits in Opposition on points of law, was an afterthought after failing to find evidence to file an Affidavit in Reply. 10.0 Decision of the Court 11.0 In view of my finding that the Respondents are not squatters but are individuals with a claim of right to the piece of land in question, I decline to grant the relief sought by the Applicant. This is also based on my finding that the Applicant was fully aware of the dispute between him and the Respondents before commencing this action. Therefore, the action was ideally not suitable for summary possession as per the law cited in paragraph 8.4 and 8.5 and for the reasons given in paragraph 8. 6. 12.0 Further, based on the position in paragraph 9. 9, the Judgment will remain academic if I do not pronounce myself on the reliefs sought by the Respondents. My finding 1n relation to the Applicant is that he has no evidence to countenance the assertion by the Respondents that he did not follow the right procedure when he obtained title to a piece of land located in a customary area. This is because he failed to produce evidence to show that he obtained consent of the chief and that of the local authority prior to obtaining title in a customary area. It is due to his failure to produce evidence to the issue raised by the Respondents that the Applicant through his Counsel, kept adjourning the matter time after the other in order to file an Affidavit in Reply, which he subsequently failed to file. I therefore, find that the Certificate of title was obtained in contravention of Section 3 (4) of the Lands Act. Consequently, I Order that the administration of the land should revert to customary tenure forthwith. Further, taking into account of the Respondents letter to the commissioner of lands for the cancellation or revocation of certificate of title, I Order and Direct that the Commissioner of Lands should cancel certificate of title No. 49979 issued in respect of Farm No. 10612. 13.0 I order that each party should bear its own costs. 14.0 Leave to appeal is granted. DELIVERED AT LUSAKA THIS 24TH DAY OF FEBRUARY ,2021 . ....................••.....•.....•......•................•••. . G. MILIMO - SALASINI HIGH COURT JUDGE