Convas Kamwendo and Anor v Nasla Industries Limited (APPEAL NO. 103/2004) [2006] ZMSC 39 (22 February 2006)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 103/2004 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: CONVAS KAMWENDO KHALID MOHAMED (Administrator of the Estate Of MARTHA LAURA ZULU) 1 sr APPELLANT 2 ND APPELLANT AND NASLA INDUSTRIES LIMITED RESPONDENT Coram: LEWANIKA, DO., CHIBESAKUNDA and SILOMBA, JJS. on 5th April 2005 and 22nd February 2006 For the Appellants: Mr. N K Mubonda of DH Kemp and Company For the Respondent: Mr. D Kasote of George Kunda and Company JUDGMENT Chibesakunda, JS, delivered the Judgment in Court Cases referred to: 1, 2. 3. 4. Kawana Mwangelwa vs Ronald Bwale Nsokoshi and Ndola City Council, Appeal No. 184 of 1999 The Attorney General vs Steven Luguru SCZ Judgment No. 20/2001 The Attorney General, Ministry of Works and Supply and Rose Makano vs Josephy Emmanuel fraser and Peggy Sikumba Frazer SCZ No. 14/2001 N B Mbazima and Others vs Reuben Vera scz Judgment No. 6 of 2 Laws referred to: 5. Sections 11, 15 and 22 of the Lands and Deeds Registry Act, Cap In this appeal we will be referring to the 1st and 2nd Appellants as the 2nd and 3rd Respondents. The Attorney General having not appealed, will not be referred to in this judgment. The Respondent will be referred to as the Appellant. These are the designations each of these parties had at the Lands Tribunal. The Appellant appealed to the Lands Tribunal seeking that the certificate of title in respect of Stand Number 17802 Lusaka issued in the name of GONVAS KAMWENDA and MARTHA LAURA ZULU be cancelled for the certificate to be issued in his name. When the matter came before the Lands Tribunal, pursuant to Rule 12 of the Lands Tribunal Rules, Cap 184 of the Laws of Zambia this matter proceeded by way of affidavit evidence. The Appellants' case was that as way back 1996 this Stand Number 17802, Lusaka, was registered in the name of the Appellants, Nasla Industries Limited. On 18th January 1999 their Director of the Company, Nasslr Sattar, received notice of intention to re-enter the property, Stand Number 17802, Lusaka. On 8th February 1999, the Appellant then appealed to the Commissioner of Lands to cancel the notice to re-enter this Stand Number 17802, Lusaka. They pleaded that the delay in developing this Stand Number 17802, Lusaka had been due to the City Council's failure to approve his plans, which he had submitted, to it, as the Planning Authority of the City Council had not met since October 1998. According to the Appellants on 10th February 1999 the Deputy Commissioner of Lands allowed this appeal by endorsing his decision on the letter of appeal. In this memo he directed the Chief Lands Officer to allow the Appellant to pay the cancellation fee of KS0,000.00. The Appellants paid the cancellation fees on 3rd March 1999. They were issued a receipt. But unknown to the Appellants the Commissioner of Lands on 8th June 1999 proceeded to re enter the said property barely two and half months after they paid a cancellation fee of KS0,000.00. On ath December 1999 a certificate of title was issued to the 2nd Respondent GONVAS KAMWENDO. He in return, on 12th March 2000 transferred the title to MARTHA LAURA ZULU (deceased). There is also evidence that the 2nd Respondent at that time was employed in the Department of the Commissioner of Lands and that he was aware of the correspondence between the Appellants and the Commissioner of Lands and when the appeal by the Appellants for cancellation of the notice of re-enter Stand Number 17802. There is evidence which is also not disputed that according to the records the Appellants on 18th January 1999 had paid ground rate of Kl00,000.00 and that on 30th September 2001 there was another payment of ground rate which was receipted and now marked 'ZZl'. There is also evidence that the cancellation fee paid by the Appellant was equally receipted and the receipt is marked 'ZZ4'. The Respondents' case on the other hand before the Lands Tribunal was that Stand Number 17802, Lusaka, was leased to the Appellants for 99 years from June 1996 subject to terms and conditions, and these are as tabulated in document marked 'SMl". These conditions of the lease were that, the Appellants was required to pay annual ground rates of K18,000.00 and the Appellants was required to erect and maintain a good and substantial building approved by the Planning Authority in the Lusaka City Council within a period of 24 months from 1996. According to the Respondents the Appellants delayed in paying these ground rates, therefore on the 17th of September 1998, 24 months, from the date of certificate on title, the Stand was inspected and the report shows that there was no development and that at that time the Appellants was in arrears of the ground rates in the sum of K49,080.00. This report is marked as 'SM2. Therefore the Lands Commissioner in accordance with the lease agreement communicated by way of notice of intention tore-enter and asked the Appellants to make representation within three (3) months of the said notice dated 18th November, 1998. Toe Appellants in response made representations explaining the breach of these conditions tabulated in the lease agreement but the Lands Commissioner was not satisfied with the explanation of this breach of contract. He, therefore, dismissed the appeal and communicated this to the Appellants in the letter dated 6th February 2001. The Respondents denied ever advising the Appellants to pay KS0,000.00 as cancellation fee. After the expiry of the notice of intention to re enter, a second inspection was carried out on 29th April 1998. Again the report revealed that there was no development. This report is marked 'SM6'. This led to the Commissioner of Lands to re-enter and register on 8th June 1999 as per certificate of re-entry marked 'SM7'. On 15th September, 1998 and 2nd March 1999 the Commissioner of Lands received applications for the same plot from the 2nd Respondent. According to Respondents, these applications were regular and were given consideration in the normal way. The Commissioner of Lands then accepted these applications. The 2nd Respondent paid the requisite fee and was subsequently issued with a certificate of title on 8th December, 1999. The Respondents' testimony is that there was no favouritism nor was there any corruption, or any underhand methods used to obtain this plot in question; and that although the 2nd Respondent is a former employee of the Government, and he was employed in the Lands Department, Ministry of Lands, Water and Natural Resources, he obtained the plot in question through the normal channels and he paid the requisite service fees of Kl0,000.00 as well as ground rates and lease charges of K152,000.00 as per receipts marked 'GK1' and 'GK2'. It is also the evidence of the Respondents that 2nd Respondent paid service charges to Lusaka City Council in the sum of K2,905,318.80. The Respondents' alternative evidence that the 2nd Respondent then decided to give the property to his cousin, MARTHA ZULU (now deceased), by way of a gift to build a house on it. This lady subsequently died on 1st March, 2003. As a result Khalid Mohamed, now the 2nd Respondent, was appointed as the Administrator of her Estate. This evidence was by way of affidavit The Lands Tribunal having considered this evidence before it ruled that the Appellant was not informed of the intention to re-enter by the Commissioner of Lands and therefore the subsequent reentry by the Commissioner of Lands was null and void. It also ruled that the Appellant therefore had a certificate of title to land. Now before us, the Respondents raised four grounds of appeal. We will not go into details of these grounds of appeal as we hold the view that only Grounds (1) and (2), are relevant to the decision we will be rendering in this appeal. Grounds (1) and (2) say: 1) The Lands Tribunal misdirected itself ·in law and fact in hearing and determining the Respondents' appeal which was seeking as relief to impugn and cancel the certificate of title issued to the Appellant as it (Lands Tribunal) lacked the necessary jurisdiction to hear and adjudicate the same 2) it The Lands Tribunal misdirected recommended the cancellation of the certificate of tltle issued to the 2nd fact when law and itself in Appellant, as this was wrongful and a back door attempt to interfere with the certificate of title. The sum total of the argument in these two Grounds is that the Lands Tribunal did not have any jurisdiction to entertain these proceedings, whose effect were to impugn or challenge the certificate of title. The Respondents citing the cases of Kawana Mwanqelwa vs Ronald Bwale Nsokoshi and Ndola City Council (1), The Attorney General vs Steven Luguru (2), The Attorney General, Ministry of Works and Supply and Rose Makano vs Josephy Emmanuel Fraser and Peggy Sikumba Fraser (3) and N B Mbazima and Others vs Reuben Vera ( 4) argued that it was not settled law that Section 1S and Section 22 of the Lands and Deed Registry Act (5) clearly provide that the jurisdiction of the Lands Tribunal is restricted to settling/determining of "land disputes" arising out of the Act and that the Lands Tribunal is not an alternative forum to the High Court where parties can go to challenge or impugn the certificate of title issued to another party. We agree entirely with Mr. Mubonda who argued for the Respondents that the position at law is as propounded in the cases cited in this appeal. In the Kawana Mwanqelwa vs Ronald Bwale Nsokoshi and Ndola City Council (1), we said: "In our considered opinion, a reading of sections 15 and 22 of the Lands Act shows quite clearly that the jurisdiction of the Lands Tribunal is limited to the settlement of 1'/and disputes" under the act and is not an alternative forum to the High Court where parties can go to even for issuance of prerogative writs such as mandamus. In these proceedings, the appellant was seeking to impugn a Certificate of Title issued to the 1st Respondent under the Lands and Deeds Registry Act, Cap 185 of the Laws of Zambia, only the High Court had jurisdiction to entertain such proceedings." Section 11 of the Lands and Deeds Registry Act (5) refers to the court - that refers to the High Court not the Lands Tribunal. This position at law is well settled and needs no elaboration. Therefore, because of this reason we hold that the Lands Tribunal had no jurisdiction to entertain these proceedings. Consequentially the proceedings before the Lands Tribunal are null and void. The parties must go to the right forum, that is, the High court to seek other relief. Because of this conclusion we order costs for the Appellants to be taxed in default on agreement. ................................... .•..... D M Lewanika DEPUTY CHIEF JUSTICE ( .......................................... L P Chibesakunda SUPREME COURT JUDGE SSSilomba SUPREME COURT JUDGE