Diocese of Monze v Mazabuka District Council and Ors (SCZ Judgement 16 of 2005) [2005] ZMSC 6 (14 October 2005)

(208) IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) SCZ Judgment No. 16 of 2005 APPEAL NO. 115 OF 2002 BETWEEN: DIOCESE OF MONZE APPELLANT AND MAZABUKA DISTRICT COUNCIL JOHN DOWDY CHINDINDINDI THE COMMISSIONER OF LANDS THE SURVEYOR-GENERAL Ist RESPONDENT 2nd RESPONDENT 3rd RESPONDENT 4th RESPONDENT CORAM: CHIRWA, CHITENGI AND SILOMBA, J. J. S. On the 11th September, 2003 and 14th October, 2005 For the Appellant: Ms. D. Neeves, Messrs Ellis and Company. For the Is1 Respondent: N / P. For the 2nd Respondent: Mr. K. Simbao, Messrs Mulungushi Chambers For the 3rd and 4th Respondents: Mr. D. Y. Sichinga, Principal State Advocate JUDGMENT SILOMBA J. S., delivered the judgment of the court. This appeal is against the judgment of the Lands Tribunal delivered on the 12th day of April, 2000 in which the Tribunal ordered the re-planning of Farm No. 576, Nega Nega in Mazabuka District. The evidence before the Lands Tribunal was that the appellant was the holder of a certificate of title over Subdivision A of Farm No. 576, in extent 40 hectares. J 2 (209) The appellant acquired the piece of land sometime in 1988 through the 1st respondent who recommended the application to the third respondent for the issuance of a title deed. According to the evidence of Mr. Mostead Mugala, the land was earmarked for the development of the Nega Nega Youth Project under the auspices of the appellant. The beneficiaries were the youths of the Diocese and the courses to be offered to the youths were leather tanning, tailoring, agricultural production and other general activities in agriculture and horticulture. As the appellant began to develop the land, the 2nd respondent, who had initially supported the application of the appellant as councillor for the area, as well as, chairman of the Plans and Development Committee of the 1st respondent that approved the allocation of the land to the appellant, became interested in the land. He told the appellant that he had been given 39 hectares of the same land. The witness told the Lands Tribunal that they could not believe him as they had title to the land and had already effected improvements to it. As if that was not enough, the 2nd respondent moved on the land sometime in 1992 with a certificate of title over Subdivision B of Farm No. 576 and started constructing his house. Apparently, he had acquired a ninety-nine year lease to the same land as opposed to the fourteen-year lease held by the appellant. It was on that basis that the appellant complained to the Lands Tribunal. There was no evidence adduced before the Lands Tribunal by the 2nd respondent. However, the record of appeal shows that the 2nd respondent personally cross-examined all the witnesses of the appellant. The argument of the appellant before the Lands Tribunal was J 3 (210) that it was the registered owner of Subdivision A of Farm No. 576. That being the position, the appellant did not accept the decision of the 1st respondent to give a portion of its land, later numbered as Subdivision B of Farm No. 576, to the 2nd respondent, thereby superimposing Subdivision B on Subdivision A and leaving the appellant with only one hectare. The Lands Tribunal considered the evidence before it and as we have already pointed out in this judgment, the Tribunal ordered the re-planning of the farm. It was further ordered that once the farm was re-planned a portion of it, measuring not more than 5 hectares in extent, should be allocated to the second respondent to accommodate his improvements while the remainder be retained by the appellant. There were three grounds of appeal that were filed under the memorandum of appeal. At the time the appeal was argued, counsel for the appellant only indicated two grounds of appeal in her heads of argument. We shall not reproduce the two grounds of appeal in this judgment for the reasons that will soon follow. It was the general consensus of the advocates representing the parties herein that the Lands Tribunal had no jurisdiction to entertain the complaint that entailed making an order for the cancellation of a certificate of title, by way of rectification of the register, because the power to do so was vested in the High Court under Section 11 (2) of the Lands and Deeds Registry Act, Chapter 185 of the Laws. J 4 (211) In her response to the concern raised by the court on the issue of jurisdiction of the Lands Tribunal, counsel for the appellant admitted that she went to a wrong forum and that by accepting to deal with the complaint, the Tribunal acted in excess of its jurisdiction. The response of counsel for the 2nd respondent was simply to concede that the lack of jurisdiction could not be cured on appeal, thereby rendering the proceedings in the Lands Tribunal a nullity. He was of the view that if the appellant were to get the remedies it was seeking, it was incumbent upon it to commence an appropriate action in the High Court. Even if the Tribunal did not make any specific order to cancel the certificate of titles, the order to re-plan the farm consequentially meant, in our considered view, that the existing title deeds held by both the appellant and the 2nd respondent were to be cancelled to allow for re-numbering and re-surveying of two new portions that were to be created as a result of the re-planning exercise before fresh title deeds could be issued. We have said in many of our decisions that the Lands Tribunal has no jurisdiction to entertain a complaint over land if either party to the complaint has title; the only court that has the legal authority to order the Chief Registrar of Lands and Deeds to rectify the register and cancel a certificate of title is the High Court. However, the several opinions of this court were never heeded by the previous membership of the Lands Tribunal as this case will clearly show. From the appeals we have had so far, it seems that the trend is continuing even under the current membership. J .1 (212) Until the Lands and Deeds Registry Act is amended, if ever it will be amended, to shift the power to cancel a title deed to the Lands Tribunal from the High Court, the former has no choice but to come up with a deliberate policy not to accept any complaint in which a certificate of title is involved. That way, the Lands Tribunal will be seen to be genuinely involved in the dispensation of quality justice, which will not only reduce litigation costs but also enhance accessibility to justice. ith these comments, we declare the proceedings in the Lands Tribunal a nullity for lack of jurisdiction. Consequently we decline to entertain the appeal because it is incompetent or misconceived. The issue of compensation for the structures put up by the 2nd respondent, as canvassed by counsel, cannot be resolved on appeal because the proceedings in the Lands Tribunal were a nullity. We think that when a fresh action is instituted in the High Court, this and other issues can be raised before that court. With regard to costs, we would have not hesitated to condemn the appellant in costs for commencing the action in a wrong forum. However, the evidence on record docs not exonerate the Ist, 2nd, 3rd and 4th respondents from blame, a fact counsel for the 3rd and 4,h respondents readily acknowledged. In the circumstances, the best we can do is to order that costs shall abide the outcome of a fresh action in the High Court. D. K. Chirwa, SUPREME COURT JUDGE. S. S. Silomba, SUPREME COURT JUDGE.