Choongo Hamanyati Mweemba v Mubanga Kasakula and Ors (APPEAL/ 41/2018) [2019] ZMCA 437 (13 March 2019)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL/41/2018 BETWEEN: CHOONGO HAMANYATI MWEEM~ "'-- .,() PELLANT AND ' MUBANGA KASAKU 1 J 1•,; ._11 DIANAMOYO JOHN CHISHIBA i \ , , 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT SEVENTH DAY ADVENTIST ASSOCIATION 4TH RESPONDENT IN ZAMBIA REGISTERED TRUSTEES GERALD CHAPENDEKA TEMBO 5TH RESPONDENT SATELITE FARMERS COOPERATIVE 6TH RESPONDENT Coram: Mulongoti, Kondolo and Ngulube JJA On 16th October, 2018 and 13th March, 2019 For the Appellant: Mr. Z. Simposya and F. Zulu of MSK Advocates For the Respondents: Mr. L. M Chikuta of I. C Ng'onga and Company JUDGMENT MULONGOTI, JA, d elivered the Judgment of the Court Cases referred to: 1. David Howes v Betty Butts Carbin and others SCZ Judgment No. 5 of2012 2 . Nkongolo Farms Limited v Zambia National Commercial Bank and others (2007} 149 3 . Rosemary Phiri Madaza v Awadh Karen Collen (2008} ZR Vol 12 4 . Zambia Building and Civil Engineering and Contractors Limited v Georgopollos (1972} ZR 228 5. Miioni v Zambia Publishing Company Limited (1987} ZR 23 6. Jonas Amon Banda v Dickson Machiya Tembo (2008} ZR 204 7. Anti-Corruption Commission v Barnet (2008} ZR 69 8. R. R Samba and others v Paikani Mwanza SCZ Appeal No. 16 0(2000 9. Zambia Co-operative Federation and two others v Registrar of Lands and Deeds and two others Appeal No. 202/2013 (Unreported} 1 0. Hanif Mohammed Bhuru v Yusuf Ibrahim Issa Ismail Appeal No. 146/2013 (Unreported} Legis lation and other works referred to: 1. Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia 2. Statute of Frauds 1677 3. Black's Law Dictionary, 10th edition by Bryan A. Garner Editor in Chief The appeal is against the High Court judgment w hich dismissed t h e appellant's case and allowed t h e resp ond ents ' counter claims. The appellant w h o was the plaintiff in th e cour t below, sued t h e respondents (defendants in the High Cou rt) fo r the following reliefs : J2 1. That the plaintiff is the rightful owner of subdivision number 5 of subdivision C of farm 175a and t hat the respondents have no legal interest or claim th erein. 11. An order that t h e 4 th defendant (SDA church) removes it property from the plaintiffs property . m. An injunction restraining the defendants from t resp assing on the said subdivision 1v. Mes n e profits v. Damages for trespass v1. Costs The appellant averred that by a verbal agreement of 1995 between himself, acting through his late father Raymond Himalambo Mweemba {Raymond), and the 4 th respondent {SDA Church), the church was allowed to worship at the appellant's property every Saturday and on such other days as meetings would be h eld. Furthermore, that while he was away 1n the USA, the 1st to 4 th respondents, without his knowledge, authority and sanction proceeded to unlawfully subdivide and sold 10 acres a nd 7 acres to the 5th and 6 th respondents respectively. They also proceeded to erect and construct a substandard structure as a church without consent and planning permission. J3 He returned to Zambia on 11 th February 2012. On 13th May, 2012 he revoked the permission to the 4 t h respondent to meet and worship at the farm and ordered them to vacate within thirty days. The 1st to 4 th respondents met and agreed to vacate but later in June 2012 they recanted and claimed ownership of the farm alleging that it had been given to them by the appellant's father. The respondents filed a joint defence. They denied that the appellant was the rightful owner of the land in question. They averred that in 1994 the appellant's late father Raymond persuaded three families namely that of Nottingham Hamaundu, Peter Sitwala and Lukas Simweemba to move with him from Munyeu SDA church to Mutuwa at his farm because Munyeu was very far away for them. They agreed and the four families started congregating at the farm. After a while the church grew. And, in 1995, the appellant's father announced to the congregation that h e and his family had decided to give 25 acres of land to the church as a gift. The announcement was allegedly made in the presence of the appellant's mother, Stars J4 Mweemba (PWl). The 25 acres comprised the land where the church was already worshipping. The appellant's father also told the church to build a permanent structure, a clinic and school for the community. Later, he facilitated the sale of parcels of land to the 5 th respondent and others. They averred that the appellant acted as an agent of his late father in the transactions. The respondents further averred that the late Raymond did not disclose to them that the land belonged to his son; the appellant. The appellant also did not protest when the land was given to the church while his father was alive not even at time of his death in 2011. Furthermore, that the notice to vacate and subsequent eviction of the 4 th respondent from the land, for 5 months, without a court order was malicious, unlawful and without justification. During the eviction the plaintiff destroyed 16 benches and 2 ½ acres of mature cotton which was ear marked for sale, for which the 4 th respondent counter claimed damages. JS The respondents also alleged that the a ppellant obtained the title deed to the land in question being subdivision 5 of subdivision C of Farm 175a, by fraud. The particulars of fraud were as follows : i) Filing the Deed of Transfer on the 3 rdOcto ber 1996 in the Lands Registry when the caveat placed by the Commissioner of Lands on the 30thSeptember 1993 was still subsisting which caveat was subsequen tly r emoved on the 7 thJanuary 2004. ii) Filing t h e said Deed of Transfer under the purported n a m e of beneficial own er to Farm No. 175a of title deed No. L4246, th e late Raymond Himalambo Mweemba who was not aware of it till his death. iii) Failure to disclose or at all inform t h e late Raymond Him alambo Mweemba that th e piece of land to th e exten t of 25 acres h e had given as a gift to the 4 th d efendant in 1995 had been subsequently given to him by a Deed of Transfer dated 3 rd September 1999 who would in turn have informed th e 4 th defendant. iv) Failure to inform the 4 th , the 5 th and the 6 th defendants while late Raymond Himala lmbo Mweemba was still livin g that the piece of land his late father had given as a gift to th e 4 th defendant a nd subsequent facilitation of transfer of pieces of land therefore to the 5 th and 6 th defendants was his piece of land given to him by a Deed of Tran sf er by his late father. v) Failure to disclose to any member of his family that his late father Raymond Himalambo Mweemba h a d subsequently transferred to him 25 acres of land given as gift to the 4 th defendant previou sly known by family m ember s . The respondents' prayer was for a d eclaration that the filing of the Deed of Transfer on the 3 rd October 1996, when a caveat placed by the Commissioner of Lands was still subsisting, was a nullity at law. Additionally, for an Order of the Court for cancellation of the Title Deed held by the Plaintiff for subdivision 5 of subdivision C of Farm 175a, Lusaka in favour of the 4 th defendant. An order J6 stopping the plaintiff from enforcing his rights he had slept on, if any, from 1996 until the demise of his late father in September 2011. A further Order of the Court that the 4 th defendant had priority of interest over the plaintiff having been given the gift of land in 1995 against the purported giving of land to the plaintiff in 1996. The plaintiff held title to the land as trustee of the late Raymond Himalambo Mweemba, his late father. For his part the 5 th respondent averred that he bought the 10 acres of land at K16,000.00 without notice that the appellant was the owner. And , that in 2006 the appellant's late father approached him to purchase 10 acres out of 25 acres he had gifted to the church. Subsequently, a contract of sale was executed and witnessed by the appellant's mother, PW 1. He paid in instalments and was referred to a Mr. Mudenda for surveying. When Mr. Mudenda delayed the late Raymond referred him to his son the appellant, who was still based in America. The appellant then referred him to Mr. Muyambango who also delayed. In 2012 after the appellant returned, the two met and the appellant told him that he had decided to repossess all the 25 acres owned J7 by 4 th , 5th and 6 th respondents. He contended that the appellant's actions were malicious , unfair and unlawful. The 6 th respondent averred that it bought 7 acres from the 25 acres and the sale was originated by the appellant's late father. The late who was a member of the 6 th respondent, at one of the m eetings, as the land acquisition committee chairman, proposed that the 6 th respondent purchases 7 acres from the 4 th respondent which was looking for funds to complete construction of the church. The late told the meeting that he had gifted the church with 25 acres to build a church and that he would facilitate the transfer of the titles since the church did not have title deeds. The late even assured them that the purchase price would go to the church. The 6 th respondent then agreed to purchase at K21,000.00 and paid in three instalments. The contract of sale between the parties was witnessed by PWl . At trial the appellant's mother, Stars Mweemba (PWl), testified that her late husband gave the land in question to their son the appellant, in 1996. She confirmed that her husband asked the J8 church to move to their farm, specifically the appellant's land , to worship from there and they built a church without permission from the appellant. She confirmed that she and her late husband were members of the 6 th respondent. She could not, however, recall the meeting of 5 th August 2005, at which her husband allegedly offered 7 acres of land to the 6 th respondent. The appellant testified as PW2. He told the court that the church was given land for temporal worship not permanent. No permanent structures were allowed to be built. In 2010 the church started building a permanent structure. He told them to stop building through the 1st respondent, at a m eeting. He further testified that the church board met on 23 rd May, 2012 and agreed to vacate. The resolution to that effect was signed by the 1st and 2 ndrespondents . Regarding the caveat, it was his t estimony that the Commissioner of Lands placed the caveat on the land in question because his late J9 • father was owing them ground rent. The caveat was later withdrawn. In cross examination he denied being approached by the 5 th respondent. He admitted that the 6 t h respondent did approach him but he refused to help them obtain title. He said he was not aware that his father gave land to the church and sold part of it to the 5 th and 6 th respondents. DWl was Nottingham Hamaundu a cousin to the late Raymond. He confirmed that Raymond asked the church to worship at his farm and he was part of the congregation. They built the church up to 5 th level and later decided to sell part of the 25 acres to the 6 th respondent. The late Raymond said the money realised from that be given to the church. DWl received the money as chairman of the building committee. The church also sold 10 acres to the 5 th respondent. In 2012 they were surprised when PW2 called them to a meeting at the Administrator General's office and he told them that the land was his and showed them a Certificate of Title in his name. JlO l , They conducted a search and confirmed that he had obtained a Certificate of Title to the land in question. They wondered how he did so, since there was a caveat on the land. DW2 was the 1st respondent. He confirmed that the church started in 1995 with a temporal structure at Raymond's farm and later they built a permanent structure in 1996. On 13th May, 2012 the church elders met with PWl, PW2 and their advocates over ownership of the land. It was resolved that the church should move out and the church signed the resolution to vacate under pressure. On 7 th June, 2012 the church changed their mind and revoked the earlier decision but were evicted on 23 rd June 2012. However, they went back in December 2012 by Order of the Court. After a search they found that the Deed of Transfer from the late Raymond to his son; the appellant, and the Certificate of Title were issued on the same day while the caveat was still in force. Jll DW3 was the 5 th respondent. He said he met the appellant (PW2) when he was selling the land as an agent of his father Raymond from 1993. In 2006 he bought the 10 acres and signed the contract of sale with Raymond. He maintained that PW2 does not own the land, and his father never said that he did. When cross examined, he said he first purchased land in 1993 and title came out in 1996. He purchased the second piece of 10 acres in 2006 but he did not request for the Certificate of Title when buying the second piece. DW4 Jonathan Chizuni, a member of the 6 th respondent, testified in accordance with the defence about the meeting of 2005 where the late Raymond told them he gave 25 acres of the land to the 4 th respondent. Raymond said title was in his name and he would facilitate the sale . DW 4 further testified that the second meeting was held on 17th February, 2010 and the first instalment was paid to Raymond. He and his wife PWl both signed on behalf of the church and the 6 th respondent. J12 In cross examination, DW4 said he was not aware whether the 4 t h respondent passed a resolution to sale land to the 6 th respondent. He conceded that he had not produced a confirmation of the minutes of the meetings. After analysing the evidence the trial Judge found that the issue for determination was whether the defendants acquired any proprietary interest in the land in dispute, being subdivision 5 of subdivision C of Farm 1 7 Sa. She noted that the late Raymond never signed a deed or any instrument where he transferred the land to the 4 th defendant. The trial Judge also took note of section 4 of the Statute of Frauds and cases like David Howes v Betty Butts Carbin and others 1 that receipts or memorandum can satisfy section 4 (which requires transactions in land to be in writing), so long they are in writing and contain all material terms such names or adequate identification of the parties, description of the subject matter nature of consideration etc. The trial Judge found that in casu, Raymond announced to the members of the church in 1995 that he gave the church 25 acres and he later told the 6 th respondent's Board about it. J13 The trial Judge accepted the testim onies of DW 1, DW2 and DW 4 and found that the land in question belonged to t h e church. She took note of all the documents especially the minutes of the 6 th respondent's meeting, payment to Raymond by 5 th respondent, acknowledgement of payment by witnesses and found that they constitu ted su fficient memorandum. Regarding the counterclaim, t h e trial Judge found fraud in PW2 's Certificate of Title which was issued while the caveat was still subsisting. She accordingly cancelled his Certificate of Title . Dissatisfied with the Judgment, the appellant filed an appeal on the fallowing ground s: 1. The court below erred in law and fact when it failed to recogni se the provisions of section 35 of the Lands and Deeds Registry Act, Chapter 185 of the Law s of Zambia, and held that "the 4 th Defendant acquired equitable interest in subdivision 5 of subdivision C of farm number 175a, which is enforceable at law." 2. The court below erred i n law and fact when i t failed to appreciat e that with the consent of the caveator, a document dealing in land may still be registered on land on which t here is a caveat in force, as per section 83 of the Lands and Deeds Registry Act, Chapter 185 of the J14 Laws of Zambia and held that "the plaintiffs Deed of Transfer and Certificate of Title were irregularly registered on subdivision 5 of subdivision C of farm number 175a, are null and void. " 3. The court below erred in law and fact when it held contrary to evidence on record, that "I find merit in the 4 th defendant's counter claim which was not challenged by the plaintiff' and awarded the 4 th defendants damages for trespass and unlawful eviction. In the Heads of Argument in support of the appeal, the appellant's counsel argued, in ground one, after quoting section 35 of the Lands and Deeds Registry Act , that the land in question namely subdivision 5 of subdivision C of Farm No. 175a Lusaka was at all material times held on title by the late Raymond as part of subdivision C of Farm No . 1 75a. This position only changed on 3 rd October, 1996 when the late Raymond executed a deed of transfer in favour of his son, the appellant, by giving him part of his farm. The land given to the appellant was a subdivision of Raymond's Farm subdivision C of Farm no. 175a. The appellant' subdivision was registered as subdivision 5 of subdivision C of Farm No. 175a Lusaka and a Certificate of Title was issued to him for this piece of land on the same day of the Deed of Transfer being 3 rd October 1996. Applying section 35 , the land cannot be adversely possessed by the respondents. According to counsel the 1st, 2 nd , 3rd and 4 th JlS respondents were in possession of parts of the land in question before the Certificate of Title was issued to the appellant, as mere licencees of the late Raymond. They h ave no right of ownership. They were only given possession by the late to use the premises for worship on temporal basis. It is submitted that the 5 th and 6 th respondents who bought land from the church (4 th r espondent) could not acquire title from a mere licencee and non title holder. Furthermore, that the 5 th and 6 th respondents cannot even be innocent purchasers for value with out notice of the appellant's interest in the land. From his own evidence the 5 th respondent (DW3) said that the late Raymond and also the appellant referred him to a surveyer. This was sufficient notice to the 5 th respondent of the appellant's interest in the land. Both the 5 th and 6 th respondents should have conducted a search on the land registry before they bought the land. It is further submitted that the respondents failed to prove fraud. The trial Judge's finding that there was fraud was therefore not supported b y the evidence. We h ave been urged to interfere with th is finding. The cases of Nkongolo Farms Limited v Zambia National Commercial Bank and others2 and Rosemary Phiri Madaza v Awadh J16 • Karen Coleen3 were cited as authorities that an appellate court can interfere with findings of fact of a trial court, which are not supported by the evidence on record. In response , to the arguments in ground one, the respondent's counsel argued that the evidence adduced b y the respondents' through their witnesses DWl, DW2 , DW3 and DW4 revealed that they acquired an interest in the land. The respondents' witnesses demonstrated, through oral and documentary evidence, that the late Raymond gave the church a gift of 25 acres of land with the consent of his children and wife as testified by DWl. DWl 's evidence was supported by the other respondent's witnesses. According to counsel PWl and PW2 's evidence cannot stand on the point of contradiction. PWl 's evidence needed independent support to b e reliable. In one breath she said the mistake that PW2 owned the land given to the respondents was only discovered in 2010. However, PW2 's later statement was inconsistent to the effect that he permitted the 4 th respondent to use the farm which he claimed was given to him in 1996. Counsel, posed a question that if PW2 was aware from 1996 to 2012 that the land was his and not his father 's, why did h e not inform his mother a nd late J17 father that the land given to the church was his? And or inform the 5 th and 6 th respondents that the land was not h is fathe r 's? After citing case law that a note or memorandum can satisfy section 4 of the Statute of Frauds which requires land transactions to be in writing, cou nsel argued th e law does not s p ecify what form the note or memorandum should take. Therefore , the note contained 1n t h e minutes of the 6 th respondent's meeting of 5 th August, 2010 and the contract of sale , satisfied section 4 . Th e note clearly showed the parties were the late Raymond and the 4 th respondent, the subject matter was property F / 1 75a/ C Mwembeshi, Lusaka. The High court decision in Zambia Building and Civil Engineering and Contractors Limited v Georgopollos4 was cited for persuasion t h at: " ... it is well settled law that the memorandum required by the statute need not be in any particular form, and may be constituted by two or more documents which are clearly connected by reasonable i nference (see Halsbury Statutes, Second Edition, Volume 20, page 503). If the contract to build is regarded as an essential term of the agreement between the parties, then, i n my view, the documents at pages 2 and 3 of the agreed bundle constitute a sufficie nt memorandum i n writi ng t hereof clearly connect ed with the document at page 1 of the said bundle. " J18 And Mijoni v Zambia Publishing Company Limited5 where the Supreme Court stated that: "It seems to us that it is now settled that for a note or memorandum to satisfy section 4 of the Statute of Frauds, the agreement itself need not be in writing. A note or memorandum of it is sufficient, provided, that it contains all the material terms of the contract such as names, or adequate identification of the parties. The description of the subject matter and the nature of the consideration ... It has also been said that letters may themselves constitute a contract and the written order of it. It follows that whether there is a binding contract or not, it must depend on the construction of the letters. " It is contended that both Raymond and his wife attended the meetin g as active participants. Some of the resolutions of the meeting as stated in the minutes at page 173 of the Record of Appeal were that: "Mr. Mweemba declared no interest in the Land and assured the church that he had given the Land without reservation and that the money would be paid directly to the church. Ti.tle Deed- The assignment to the cooperative and the church would come from Mr. Mweemba since title is still in his name." According to counsel the minutes constitute a valid agreement giving value to the gift as made by the late Raymond and the church. J19 It is also clear that the parties laboured on the understanding that title was still in the names of Raymond. Before the gift to the church in 1995, there is no documentary evidence to indicate that the land was given to the appellant by late Raymond. Therefore, this gap in evidence corroborates the respondents' evidence that the appellant procured the title by means of fraud , misrepresentation or mistake. The letter at page 174 Record of Appeal to the 6 th respondent copied to Raymond stated: "Mr. Raymond Mweemba having been mandated by the church shall undertake the legal and physical aspect of the demarcation of the said land and issuance of the certificate of titles thereof by the Ministry of Lands at the appropriate time. " The contract of sale at page 175 also shows that Raymond received money from the 5 th respondent which was witnessed by Hildah Malambo. Raymond was also aware of the sale of land to the 6 th respondent by the church and instigated it. He even acknowledged receipt of their money per document at page 183 of the Record of Appeal, as representative of both the 4 th and 6 th respondents. PW 1 equally J20 signed as representative of both respondents as well. The document at page 184 is an acknowledgment of p ayment by the 6 th r espondent of the 7 acres, w hich Raymond also signed. Thus , the evidence was that the appellant concealed his intention to transfer the land in his name from his late fath er. He waited until the death of his father to assert ownership of the land. He, therefore, did not come to court with clean hands. The appellant waited for 15 years without asserting his rights by which time the 4 th respondent had built a permanent structure. Reliance was placed on the case of Jonas Amon Banda v Dickson Machiya Tembo6 where it was held that: " ... it is still indispensably necessary, in order to justify the reading of documents together for this purpose, that there should be a document signed by the party to be charged which, while not containing in itself all the necessary ingredients of the required memorandum, does contain some reference, express or implied, to some other document or transaction. Where any such reference can be spelt out of a document so signed, then parol evidence may be given to identify the other document referred to, or, as the case may be, to explain the other transaction, and to identify any document relating to it. If by this process a document is brought to light which contains in writing all the terms of the bargain so far as not contained in the document signed by the party to be charged, then the two documents can be read together ... " J2 1 In light of the foregoing the 1st to 4 th respondents cannot be said to be mere licen cees. The 5 th to 6 th respondents are bonafide purchasers for value and their contracts can be enforced. In ground two, it is the appellant's contention that though section 83 of the Lands and Deeds Registry Act provided that a caveat can only be removed by the caveator or h is attorney in writing, PW2 's evidence was th at "there was an arrangement between the deceased and the Commissioner of Lands, whereby the latter agreed to register the six subdivisions created by the deceased. The parties also agreed that one of the properties be sold to pay ground rent. To secure the arrangement, the Commissioner of Lands placed a caveat on the land, which was withdrawn after the payment of ground rent. The deceased registered the Deed of transfer with his full knowledge and signed it. He prayed to the court to declare h i m the legal and re gistered owner of Subdivis ion 5 of subdivision C of Farm Number 175a ... " This evidence was unchallenged in cross examination. DW3 even corroborated it. Thus, since it is the Com m issioner of Lands who grants State's consent to assign, his conduct of r egistering the Deed of Transfer, shows t h at he consented. And, he went on to issue a Certificate of Title to the appellant. It is furth er a rgued t h at J22 the 1993 arrangement between the deceased and the Commissioner of Lands is the same arrangement by which the 5 th respondent's subdivision 6 of subdivision C of Farm No. 175a was registered and issued with title. Learned counsel maintained that equity is equality, and so the 5 th respondent's title for subdivision 6 of subdivision C of Farm No. 175a, Lusaka cannot be valid while that of the appellant is said to be null and void and cancelled by the court below which cancellation again benefits the 5 th respondent. Thus , the court below, fell into error when it cancelled the appellant's Certificate of Title on account of its grant at a time when there was a caveat placed by the Commissioner of Lands. In response, the respondent contends that it baffles the mind that the Deed of Transfer and Certificate of Title were issued on the same day. It can only be concluded that the Certificate of Title was obtained by fraud especially that it was issued while the caveat was in force . The said caveat being withdrawn in 2004, rendering the Deed of Transfer and Certificate of Title of 3 r d October 1996, J23 • irregular and null and void. The case of Rosemary Phiri Madaza supra was relied upon that: "As we have already pointed out, there was a caveat placed by the appellant to prohibit any dealings in Stand No. 5548. So when an assignment of the Stand to the respondent was executed, no registration should have taken place unless the caveator consented. " It is the further submission of counsel that the appellant did not adduce evidence to show that a letter was written by the Commissioner of Lands to authorise the late Raymond to lodge a Deed of Transfer. Citing section 34 of the Lands and Deeds Registry Act and the case of Anti-Corruption Commission v Barnet Development Corporation Limited7 that under section 34 of the Lands and Deeds Registry Act, a Certificate of Title can be challenged and cancelled for fraud or reasons of impropriety in its acquisition, " ... so the statement that a Certificate of title is conclusive evidence of ownership is only true when there is no challenge based on fraud. " Accordingly, the trial court did not err when it observed that "in mysterious and unexplained circumstance, the Deed of Transfer was entered on the Lands Registry on 3 rd October 1996 in which the deceased transferred the disputed land to his son the appellant. With J24 remarkable efficiency, the Ministry of Lands and Deeds Registry issued the appellant a Certificate of Title, the same day." The court was on firm ground in holding that the Deed of Transfer and Certificate of Title were irregularly registered on the land in question being subdivision 5 of subdivision C of farm 175a, and were null and void. In ground three the appellant's counsel contends that in accordance with sections 33 and 54 of the Lands and Deeds Registry Act, a Certificate of Title is conclusive evidence of proprietorship in courts of law and equity. At the time the appellant evicted the 4 th respondent in June , 2012 he was the owner of the land, he had a Certificate of Title which was cancelled by the trial court in its judgment of 25th July, 2017. The cancellation cannot have retrospective effect to June, 2012. Thus the court below misdirected itself when it granted the 4 th respondent, the r elief premised on ownership of land, which it had not acquired, to date. J25 In response, the respondents' argued that it was indisputable that the appellant evicted the 4 th respondents. And , in the process 16 benches and 2 ½ acres of cotton were destroyed. Regarding the argument that the cancellation of the Certificate of Title cannot have a retrospective effect to June, 2012 , it is contended that this argument is misguided. The court below was on firm ground that the Certificate of Title was null and void due to irregularity in its acquisition. Thus, the appellant had no right to trespass on the respondent's land, to evict them and destroy their property. At the hearing of the appeal, Mr. Simposya, augmented the Heads of Argument by submitting that the appellant (PW2) adduced proof that the Commissioner of Lands consented to the Deed of Transfer and Certificate of Title being registered in line with section 83 of the Act. He referred to page 246 of the Record of Appeal where PW2 testified that he was privy to the arrangement between his father and Commissioner of Lands over the removal of the caveat. The respondents even failed to adduce evidence of fraud in issuance of the Certificate of Title. J26 Mr. Chikuta, who appeared for the respondents also augmented his Heads of Argument. He contended that the appellant has not shown proof that the Commissioner of Lands consented to registration of the documents while the caveat was in force. We have considered the Judgment and arguments by both counsel. Flowing from grounds one and two, the crucial issue which we should resolve first, is whether the appellant's Certificate of Title was properly issued in the face of a caveat. It is trite that a caveat is like an injunction as it prohibits any dealings on the land in question, once it is entered. According to Black's Law Dictionary, 10th edition by Bryan A. Garner Editor in Chief "caveat is latin for let him or her be aware." In casu the caveat was entered in September, 1993 and removed in January, 2004 as shown by the letter of the Commissioner of Lands at page 172 of the Record of Appeal. The Supreme Court in the case of R. R Sambo and others v Paikani Mwanzas observed that "(i) the 1st appellant was granted title to the J27 stand under circumstances which were not only bordering on fraud but that were fraudulent. Like in this case, the deed of gift was registered on a caveated property which is contrary to section 79 of the Lands and Deeds Registry Act, Cap 185 and which section reads as follows: "So long as a caveat in form remains in force, the Registrar shall not make any entry on the Register having the effect of changing or transferring or otherwise affecting the estate or interest protected by such caveat." The Suprem e Court h as a lso elucidated , that a caveat can only be removed by cou rt or der. In Zambia Co-operative Federation and two others v Registrar of Lands and Deeds and two others9 t h at court stated that entry of a caveat bars t h e Registrar of Land s a n d Deeds from m aking entries on t h e Register wit h t h e effect of detrimentally affecting t h e interest protected by th e caveat. It h eld t h a t : "It is evident from section 81 of the Act that a caveat can only be removed by order of the court. Further, under section 83 of the Act, a caveat can only be withdrawn by the caveator. In this case there is no evidence that the caveat was dislodged pursuant to a court order or indeed that it was withdrawn by the caveator, the caveator's attorney or the caveator's agent. We therefore hold t hat the withdrawal of the caveat was irregular and consequently void. " J28 Additionally, in the case of Hanif Mohammed Bhura v Yusuf Ibrahim Issa Isman 10 , wherein the appellant, by way of deed of gift and without the knowledge of the caveator, acquired property that was subject to a caveat that had been entered on the respondent's behalf. The Supreme Court had the following to say at page J16 " . .. the fact that title changed to the appellant without the knowledge of Mary Mumba, the caveator, and without a specific court order, put the learned trial Judge on inquiry as to whether the title issued to the appellant was a clean title." The court took into account the fact that the title was issued when the caveat entered on behalf of the respondent was still in existence and accordingly found that the learned trial Judge rightly reached the inescapable conclusion that the appellant was not the lawful owner of the property. Given the statutory and case authorities cited above, it is evident that a caveat can only be removed by court order or withdrawn by the caveator or his attorney in writing. According to section 79 , the Registrar is proscribed from making any entry in the register that would affect the interest protected by the caveat. The Registrar is vested with authority to exercise J29 vanous other powe rs under the miscellaneous prov1s10ns pursuant to section 84 of the Act , but none of them include affecting change of ownership of property that is subject to a caveat, in the absence of a court order, if such caveat has not been withdrawn by the caveator. It therefore, follows that there is no legal basis upon which the Registrar can impliedly or by conduct remove a caveat, as contended by the appellant as that is contrary to sections 79 and 83 of the Act. Following the holding of the Supreme Court in the case of Hanif Mohammed Bhura v Yusuf Ibrahim Issa Ismail 10 , and other cases cited it was proper for the trial court to conclude that there was indeed fraud or impropriety in the manner in which the Certificate of Title was issued to the appellant in 1996, as there was a valid caveat in force at the time of registration of the Deed of Transfer and the issuance of the Certificate of Title to him. We therefore, cannot fault the trial Judge for cancelling the appellant's Certificate of Title which was issued when the caveat was in force. This prima facie proved fraud , or impropriety in its issuance. To give effect to the argument that the Commissioner of Lands by his conduct of registering the Deed of Transfer and J30 I issuing the Certificate of Title, consented to removal of the caveat would be tantamount to allowing illegality or circumventing the law. The law is clear removal is by court order, withdrawal by caveator or his attorney in writing. Once the caveat is removed , the register must be rectified to reflect this. Once a caveat is entered rightly or wrongly, it must be removed in accordance with the law. This is not the case in casu. The second issue that falls for determination in this appeal is whether land was given to the church by Raymond and subsequently sold to the 5 th and 6 th respondents. We agree with the cases cited and the provisions of section 4 of the Statute of Frauds being satisfied in this case. We are therefore inclined to uphold the finding by the trial Judge that the documents proved that Raymond sold the land when she noted that: 1) The purpose of the meeting as shown in the minutes at page 9 was to complete the building works as suggested by Mr. Raymond Mweemba 2) At page 10 the minutes of the Satelite Farmers Cooperative Society, the meeting was called to discuss the sale of 10 acres of land between the Cooperative and SDA Church. Mr. and Mrs. Mweemba attended the meeting and are listed in the minutes dated 5 th August, 2005. Under resolution No. 1, it is recorded that: "Mr. Mweemba declared no interest in the land and assured the J31 church that he had given the land without reservation and that the money would be paid directly to the church. " 3) Mr. Raymond Mweemba is copied in the offer letter between SDA Company and the Satelite Farmers Cooperative Society at page 13. 4) At page 14-18, Mr. Raymond Mweemba and PWl witnessed the receipt of various payments made by the 5 th and 6th defendants. 5) At pages 18-21, minutes of the Satelite Farmers Cooperative Society dated 17th February, 201 0, show that Raymond Mweemba attended the meeting where the Board discussed the schedule of payments to the Mututwa SDA Church. 6) At pages 22-23, the acknowledgment receipts from the Satelite Farmers Cooperative show that Mr. Raymond Mweemba and Mrs. Stars Mweemba represented the Board on the sale of 10 acres of land. " The above tend to show that the 4 th respondent was given 25 acres of land by the late Raymond of which 10 and 7 acres were sold to the 5 th and 6 th respondents, respectively. The said documents are in line with the evidence of the respondents' witnesses that Raymond invited the church to worship at his farm. He later gave them 25 acres in 1995. This evidence was confirmed to an extent by PW 1 and PW2. We note that Raymond gave the land to the church in 1995, by which time there was a caveat and the church's interest in the land was never registered. However, at the meeting of 2010 as the minutes show, he reiterated that h e had given the church 25 acres as testified by DW3 and DW4. This J32 ' I should therefore not cause legal challenges as in 2010, when he reiterated that he had gifted the church 25 acres, there was no caveat, having been withdrawn in 2004. The church is at liberty to register the remaining of the land after the sale to the 5 th and 6 th respondents. Consequently, the trial Judge was on firm ground when she held that the church had acquired an equitable interest in the land. In addition, we equally cannot fault her for finding that the 5 th and 6 th respondents are bonafide purchasers for value. We are alive to the contention by the appellant that the land the 5 th respondent purchased earlier, directly from Raymond , and is on title to him is equally null and void as the caveat was in force at the time. The 5 th respondent1s testimony, in cross examination was that he purchased the land in question in 1993 and title was issued in 1996 (see page 263 lines 3-5 of the Record of Appeal). This issue was not interrogated further at trial neither was there a claim against this piece of land by the appellant in the court below. Nonetheless, we opine that the circumstances that led to cancelation of his Certificate of Title are clearly different from the 5 th respondent's . The contract of sale of 1993 between Raymond J33 , I • and the 5 th respondent cannot be nullified because of the caveat. The appellant did not dispute that the land in question was sold to the 5th respondent. The Certificate of Title issued in 1996 when the caveat was in force could actually be rectified, and would not nullify the sale as alluded to. In light of all the foregoing, grounds one and two lack merit and are dismissed. Ground three relates to the award of damages to the 4 th respondent following damage to its property after eviction. The appellant has argued that at the time he was the owner of the land and had title to it and not the 4 th respondent. We are of the considered view that the 4 th respondent were in occupation of the land after being invited by Raymond, a fact confirmed by PWl and appellant himself. They were not squatters who could be evicted and suffer loss without consequence. We find therefore , that the trial Judge was on firm ground when she awarded them damages for the cotton and benches which were damaged during eviction. J34 In the net result , the appeal lacks merit and is dismissed . Costs to the respondents to be taxed , in default of agreement. J . Z. MULON OTI COURT OF APPEAL JUDGE M. M. KONDOLO COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE J35