Efthimios Vangelatos (suing as Administrator and personal representative of the estate of the late Demetre Vangelatos) v Ng'andu and Ors (2021/HP/ 1289) [2025] ZMHC 106 (17 November 2025)

IN THE HIGH COURT FOR ZAMBIA 2021/HP/ 1289 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: EFTHIMIOS VANGELATOS (suing as Administrator and personal representative of the estate of the late Demetre Vangelatos) PLAINTIFF AND PETHIAS NG' ANDU UNKNOWN PERSONS 1 ST DEFENDANT 2ND DEFENDANT Before the Honourable Ms. Justice S. Choch , on November 17th 2025 in Chambers. For the Plaintiff Mr. G. Mileji and Mr. C. Hama ambo - Messrs Malambo and Company For the Defendants: Mr. I. Tindi - Messrs Zambezi hambers JUDGME T Cases Referred to: 1. Atlantic Bakery vs Zesco Ltd. ~electe Judgment No. 61 of2018 2. Hakainde Hichilema vs Attorney Gen ral SCZ 24/2017 -J2- 3. Mhalid Mohamed vs Attorney Gene l (1982) DR 49 Legislation Referred to: 1. Environmental Management Act o. 12 of 2011 2. The Public Roads Act No. 12 of 2 1 02 -J3- 1. INTRODUCTION 1.1 This Judgment is in respect of the Plaintiff's claim against the Defendants. The Plaintiff by Writ of Summons and Statement of Claim dated October 20th , 2021 claime the following: (i} An order that the Defendants, at the r cost, do forthwith pull down and remove so much of the said st ctures built on and or along the road which passes through the l nd in issue; (ii} Damages for trespass; (iii} Injunction to restrain the Defendant whether by themselves or by their servants or agents or otherwise whosoever from entering and erecting buildings on the said land. (iv} Possession of the said land; (v} Mesne profit; and (vi} Costs. 1.2 The Defendants entered appearance an filed Defence on July 11 th, 2022 by which Defence the Defend ts denied occupying land belonging to the Plaintiff. 1.3 By Reply dated July 26 th , 2022 the Pl . ·ntiff joined issue with the Defendants on their defence. 2. TRIAL COURSE -J4- 2.1 Trial was scheduled and heard on Jun 25th and 26th, 2024 and trial concluded on March 21st , 2025. The laintiff called one witness in aid of his case. The Defendant called witnesses and subpoenaed one witness in aid of their case. • 2.2 The Plaintiff's witness was one Ejthi ios Vangelatos the Plaintiff, who submitted a Witness Statement d ted September 7th, 2022. 2.3 PW testified in chief that he sues in his capacity as Administrator of the estate of the late Demetre Vangelat s owner and entitled to Farm 1127 situate in Southern Province (here n after referred to as Subject Property). 2.4 PW testified that the 1s t Defendant and others unknown have taken possession and constructed building on the subject property. Reference was made to Surveyers rep rt at pages 9 - 11 of the Plaintiff's bundle of documents. 2. 5 PW further testified that the surveyo 's findings show that the Defendant's structures are at the fronta e of his private property and the road reserve on which no constructi n is authorized. 2.6 PW testified that the road from Chik kata to Mazabuka (Great North Road) passes through the subje9t property, whose title was acquired in 1995 at which point there wl re no developments on the frontage. -JS- 2. 7 PW testified that there have been vario s cases of theft, trespassing and vandalism occasioned on the subject property by the Defendants. 2.8 PW further testified that on date u own the Defendants had wrongfully and without the consent entered and took possession of part of the subject prope ty and remain in possession. 2.9 PW testified that the Government of he Republic of Zambia and Mazabuka Local Authority had appro ched the Plaintiff and was granted permission to establish the Ii estock Kraal and set up a borehole on the frontage of the subject roperty. 2. 10 PW testified in chief that he is not pri to what circumstances led Zesco to connect the Defendants to the ational Power Grid. 2. 11 PW further testified that the Def end an s have acknowledged being squatters and that he believes the Road Development Agency has no authority or mandate to allow squatter . to build on Road Reserves and offer to compensate squatters. That he subject property belongs to the Plaintiff and Road Development gency has no authority to allow Defendants to build there. 2.12 Under cross examination, PW concede that the subject property was purchased in 1995 and Certificate f Title was obtained in the same year. That in 1995 the Lusaka - Livingstone Road was in existence. -J6- 2.13 PW testified that some of the Defend , t's structures are within 50 meters of either side from the center of the Lusaka - Livingstone Road, and that his claims are again t both properties within or outside the 50 meters radius. 2.14 PW conceded that the Lusaka - Living tone Road and Chikankata roads and the road reserves do not belo g to the Estate. 2 .1 5 PW testified that there exists a fence s parating farm activities and Defendant's settlement and the Defen ants have not built beyond the fence into the farm . 2. 16 In re-examination PW confirmed that he Farm was purchased in 1995 but not sure when the Certificat I of Title was issued on the farm. 2 .1 7 PW clarified that the fence between t ~e Farm activities and the Defendant's settlement is not a boundari, indicator but for purposes of containing livestock and activities on ither side of the fence. 2.18 DWI was Pethias Ng'andu who filed t e witness statement dated August 30th , 2022 and gave evidence on oath. 2 .1 9 DWI testified in chief that h e settled o the subject property in or about year 2004, where he has built a h1use and shop as evidenced by page 13 of the Defendant's bundle of tlocuments. -J7- 2.20 DWl testified that he lives on the subj ct property with his wife and 3 children. That his shop is connecte to the Nation Power Grid - ZESCO and he pays Council levies for e shop. 2.21 DWl further testified that he collects water from the Chikankata District Council's borehole and uses th Council fee - paying toilet. 2.22 DWl further testified that he has never trespassed or disturbed the Plaintiff's quiet enjoyment of the Ian belonging to the Plaintiff, which land is fenced off. 2.23 Under cross examination, DWl ed that he moved to the subject property in 2004 under the a thorization of Chieftainess Mwenda and built a house and a shop without planning authority from the Council. 2.24 DWl testified that according to his knol ledge the subject property belongs to Road Development Agency ( A) which is a department under the Council. 2.25 DWl conceded that the Council put up a toilet and a borehole but was not aware that the Council obtaine permission from the owner to put up the toilet and drill the borehol 2.26 DWl conceded that the Plaintiff had a f min the area but his house and shop are outside the Farm's coordin tes, which according to him is outside the wire fence. -J8- 2 .27 DW 1 conceded that he is aware that t e Plaintiff's Farm covers both sides of the Great North Road. Conce ·ng to the contents of page 10 of the Plaintiff's bundle of documents , ated August 16th, 2022. 2.28 DWl testified that the Plaintiff's fence runs behind the Defendant's houses and fence covers p rtions of the Farm. 2.29 DWl testified that the RDA owns the tretch of land alongside the road of either side. He testified that the Defendants knew it belonged to RDA in 3 years after they settled bee se RDA moved them to pave way for road construction. 2 .30 DWl testified that he is a village Headm and knew that he and the Chieftainess cannot allocate State land hat is on Certificate of Title. 2.31 DWl conceded that pages 54 - 72 f the Plaintiff's bundle of documents contained a Village Registe of people allocated land at Chikankata Turn off. He testified that t e said Register was prepared by Chieftainess Mwenda. 2.32 DWl testified that he was not aware th t the land allocated to him was titled land and does not agree that · is on Certificate of Title. 2 .33 DWl conceded that the Plaintiff had Ce tificate of Title in his name as per Page 4 of the Plaintiff's bund e of documents with first registration date of March 15th , 1937. 2.34 DWl was not subjected to re-examination. -J9- 2.35 DW2 was Royde Mainza who filed Wit ess Statement dated August 30th , 2022 and gave evidence on oath. 2.36 DW2 testified in chief that he resides in the area of Chikankata Turn off in Chikankata District where he h s built a house and has a family of 6 children. 2.37 DW2 testified that he conducts busin ss there and pays business levy to Chikankata District Council and the area has a borehole and Zesco power line. 2.38 DW2 further testified that on or about 1995 Mr. Jimmy fenced off the portion of his land and at a meeti g with the Community Mr. Jimmy asked them not to trespass in t land as fenced. 2 .39 DW2 testified that the Community me ers have not trespassed or disturbed the quit enjoyment of the lan belonging to the Plaintiff. 2.40 Under cross examination, DW2 conce ed that he did not have planning authority to build his house an has no legal document for the house. 2 .41 DW2 testified that the Plaintiff's land st ts and ends 50 meters from the center of the road and his commu ity stay within 50 meters before the Plaintiff's fence. -JlO- 2.42 DW2 testified that he was not aware th t the Plaintiff had title for his farm but conceded that the Certificate , f Title as appears at pages 3 - 7 of the Plaintiff's bundle of documents belongs to the Plaintiff. 2.43 DW2 testified that the 50 meters is o ed by the Road Development Agency (RDA) of the government. He tes ified that he is unaware that RDA has no authority to allocate 1 d, but RDA allowed the community to live there. 2.44 DW2 conceded that Mr. Jimmy was th owner of Dar Farms since 1995. 2.45 In re-examination, DW2 clarified that A, allowed the community members to live there, during the con , truction of the Livingstone road. 2.46 DW3 was Catherine Mboozi who sub itted a Witness Statement dated August 30th, 2022 and gave evi ence on oath on her own behalf and other Defendants not presen in Court. 2.47 DW3's testimony was generally similar i facts to that of DWl and DW2, I shall not repeat it. 2.48 DW3 further testified that as a Commu ity Chairlady, Mr. Jimmy would discuss with her security concern . Further that RDA did at the meeting confirm that they would c mpensate the community should the road construction n eed land f om them after valuation of the buildings. -J11- 2.49 DW3 testified that she never trespa sed or disturbed the quiet enjoyment of land belonging to the Plai , tiff. 2.50 In cross examination, DW3 confirmed at the community does not live within the coordinates of the Plaint ff's Farm. 2.51 Referred to Pages 10 and 25 of the Plai tiff's bundle of documents, DW3 testified that she didn't know that he Plaintiff's farm is on both sides of the road. 2.52 DW3 testified that the community live about 30 meters from the main road which is RDA land. 2.53 DW3 conceded that the Road reserve ea is public area and that members of the public have a duty top otect public property which the community is doing. 2.54 DW3 further conceded that the Comm nity is not allowed to erect buildings on the Road Reserve. 2.55 Asked if the Plaintiff has similar duty t , protect public property as owner of land and member of publ c DW3 answered in the affirmative. 2.56 DW3 testified that she didn't know th the Plaintiff pays ground rates for area the road passes. -J12- 2.57 DW3 clarified that Mr. Jimmy only disc ssed one security issue and nothing about vandalism and damage I of the fence. She testified that Mr. Jimmy discussed the issue o throwing plastics onto the farm, that plastics must be burnt. 2.58 DW3 testified that she didn't know of y complaints by the Plaintiff to Police on vandalism. 2.59 DW3 conceded that none of the Defend ts had Certificates of Title on the subject land and that RDA has o authority to allocate land. 2.60 DW3 confirmed that the community as on the subject land way before the Plaintiff bought the farm in 995 and even when he was fencing. 2.61 DW3 was not subjected to re-examinati n . 2 .62 DW4 was Gershom Kalumba Chilukos - Principal Environmentalist with Road ment Agency who was subpoenaed by the Court and testified 2.63 DW4 testified that his duties inc ude primarily to ensure environmental issues are taken account during road construction work in accordance with . nvironmental Management Act of 2011. 2.64 DW4 testified that the extension works n the Lusaka - Livingstone, stretch between Kafue - Mazabuka was divided into two lots. -J13- • LOT 1 - From Turn Park to Chik kata • LOT 2 - From Chikankata Tuen o f to Mazabuka General hospital. The woks commenced around 2019 an concluded in 2023. 2.65 DW4 further testified that the Road is classified as a Trunk Road which is part of the Plaintiff starting f om Livingstone and ends at Turn Park. He testified that accordin to the Public Roads Act of 2002, Section 21, a Trunk Road has a oad Reserve of 100 meters to 50 meters on either side of the white Center line of the Road. 2.66 DW4 testified that the RDA encountere the Chikankata community which is built on the Road side on two 1. vels. Level 1 - through the Consultant w o was preparing the Environmental Impact Ass ssment Report for the Road project. Level 2 - I personally with a team o my colleagues, we met the community representative n October, 2020, at Chikankata Turn off itself. We met them and others in October for the purposes of sensitizing them about t e provisions of the Road Reserve according to the oad Act. We also met his royal highness Chief N alu ama and his headmen, the Council at Mazabuka and hikankata. -J14- The criteria used, 1s that we noticed that the community resides on th Road Reserve and we needed to alert them that the la does not allow erection of permanent structures in he Road Reserve. We further indicated to them that sin e the Road Project was being financed by ADB, shoul the contactor feel that the Community need to e moved they would be compensated to facilitate heir removal and relocation. The contractor however, voided the community and the aspect of compensati In and re-locating them did not arise. 2.67 DW4 confirmed under cross examinatio that his duties do not include road design but rather enviro mental impact assessment both Social (people) and physical (water trees). 2.68 DW4 testified that it was highly possibl that plastic pieces of paper flying onto a farm can affect animals on a farm. 2.69 DW4 confirmed that RDA was aware of he existence of permanent structures on road reserve connected to power. He further testified that the challenges are facilitated by t e local planning authority who give planning authority. 2.70 DW4 confirmed that the law does no allow for the placing of permanent structures on the road resei ve and that RDA has no power to allocate anyone a piece of land i or on the Road Reserve. -JlS- 2.71 Asked whether RDA own land where r ads are built or merely have the right of way, DW4 testified that it ·s a Gazetted Road and he is not aware of any title that the State hol sin Chikankata. He further testified that if RDA must construct a road on titled land they proceed with permission of land owner. 2. 72 DW4 confirmed that the persons livi g on the road reserve at Chikankata Turn Off are squatters. That RDA only remove squatters if their existence affects the course of t e road works in the instant case some were removed. 2.73 DW4 testified that ADB did not provide for any compensation to be paid. 3. LAW AND SUBMISSIONS 3.1 Both Parties filed written submissions I will not reproduce the submissions in full as the same are o record and suffice to state that I have reviewed and consider d the submissions and arguments. 3.2 The Plaintiff submits that the Defendant are illegally on the subject land and the law prohibits construction of permanent buildings on the Road Reserve as per Section 55 of the Public Roads Act No. 12 of 2002 . -J16- 3.3 The Plaintiff fu rth er submits t hat hi locus s tandi also rests on Section of the Environmental ment Act No. 12 of 2011 which provides: "4. (1) Subject to the Constitut·on, every person living in Zambia has the right to a clean, safe and healthy environment. (2) The right to a clean, safe and healthy environment shall include the right of acce s to the various elements of the environment for recrek tion, education, health, spiritual, cultural and econom J~ purposes. (3) A erson ma 1 is threatened or is likel reatened as a result a ainst the erson whose or omission is likel to cause harm to human health o (4) The action referred to in sub ection (3) may seek to (a) prevent, stop or discontinue any activity or omission, which threatens, or is likely t cause harm to, human health or the environment; (b) Compel any public officer to take measures to prevent discontinue any act of omissi n which threatens, or is likely to cause harm to, human l ealth or the environment; (c) require that any on-going activity or omission be subjected to an environment au it or monitoring; (d) require the person whoJe activity or omission threatens, or is likely to cause arm to, human health or -J17- the environment, to take meas res to protect human life or the environment; (e) compel the person responsi le for any environmental degradation to restore the deg aded environment, as far as practicable, to its conditio immediately prior to the damage; and (f} provide compensation to a y victim for the harm or omission and the cost of beneft ial uses lost as a result of an activity that caused harm to human health or the environment. (SJ A court tribunal te authorit erson or bod nction and an erson exercisin 'urisdiction under t is Act shall in relation to an decision order exercise o ower or er ormance o an unction be section six." (Emphasis ours) 3.4 The Plaintiff relied on the authority in J merson Chipasha vs Silole Zulu Appeal No. 105/2014 and Binwe l Nutaka vs Silwamba and Another 2012 /HP/ 1043. 3.5 The Plaintiff submits that the Defendn ts have trespassed on the subject land as they are not using it for hat it was intended for. 3.6 The Plaintiff claims for damages and m sne rights for loss of use of the land. Also for a permanent injuncti n against the Defendants. -J18- 3.7 The Defendants submit that their set ement on the Road reserve does not amount to trespass on the Pl ntiff's land. The Defendants submit that the Road Reserve is public property of the Government of the Republic of Zambia by virtue oft e Public Roads Act No. 12 of 2002. 4. COURT'S ANALYSIS AND DECISONS 4. 1 Review of the record reveals that the f llowing are the agreed and disputed facts. AGREED FACTS 4.1.1 The parties agree that the subject land sits on the Road Reserve i.e within 50 meters on either side from th midline on the road. 4 . 1.2 It is also not in dispute that the Defend ts and other parties (Local authority, Zesco and ZRA) have constr cted permanent structures on the Subject Property. 4.1.3 It is undisputed that it is a contraventio of the law for one to build permanent structures on the Road Rese ve. DISPUTED FACTS 4.1.4 The Defendants avers that the Subject roperty does not belong to the Plaintiff. -J19- 4.1.5 The Defendants avers that they do not n ed consent from the Plaintiff for them to do anything on Subject Pro . erty. 4.2 From the facts, evidence and submi of the Parties I take judicial notice that whoever owned arm No. 1127 situate in Southern Province when the Trunk Ro d (Tl) was gazetted in 1969, did grant the Government of the R , public of Zambia / Road Development Authority permission to c nstruct the said T 1 even as it passes through the Farm. The Plain ti f received Certificate of Title of the said farm in 1995 post road cons ruction. 4.3 DW4's testimony to the effect that Tl easures 100 meters and the 50 meters on either side from the middle of the road constitutes what is referred to as Road Reserve. The Act defines Road Reserve as "any p rt of the road other than the carriage way, footpath or cycle t aclc' 4.4 By reason of paragraph 4.2 and 4.3 a ove, I find that the portion that is Tl and Reserve Road does not be ong to the Plaintiff and thus cannot be under the control and directi n of the Plaintiff. The said subject land is under the control, maint nance of Road Development Agency by virtue of the Public Roads A , t No. 12 of 2002. 4 .5 It is trite and accepted by both p ties that construction of permanent structures on public Road or Road Reserve is against the law. Section 55 (1) (a) of the Public · oads Act No. 12 of 2002 (The Act) is clear on this, as reproduced elow; -J20- "55. (1) Except as may be nece sary in any emergency in order to enable a person to se the road in a lawful manner, no person shall othe wise than in accordance with the provisions of this Act- ' (a) Encroach on any road or oad reserve by making or erecting any building, fence, di ch or other obstacle or by planting trees or otherwise." 4 .6 Section 55 (2) of the Act provides ; "(2) The road authority ma authorize under such conditions as it may impose th doing of an act otherwise prohibited under subsection (1)." 4 .7 Section 55 (3 ) (4) , (5), (6 ) and (7) of the ct provides; "(3) Any person who contravene subsection (1) commits an offence." (4) Any cost of repair incurred by a road authority as a result of any act done in con tr vention of the provisions of subsection ( 1) may be recovet ed by the road authority as a civil debt from the person ho did the act or caused it to be done. (5) A road authority may, by no ice in writing, direct any person who encroaches on any road or road reserve by making, erecting or planting a y building, fence, ditch, -J21- tree or other obstacle contra to subsection (1) to remove the same within the time to be stated in the notice. (6) If any person fails to com ly with a direction given under subsection (4), the roa authority may cause the obstacle specified in the notic to be removed. (7) The cost of removing any ob tac le under subsection (6) may be recovered by the road authority as a civil debt from the person failing to com ly with the notice." 4.8 It would appear to me that the Act clot es the Road Authority with Power to authorize doing of an act therwise prohibited under Section 55 (1). It also clothes the Road uthority to demand or give notice for removal of persons encroa hing on the road or road reserve. From this I deduce that the I oad Authority is the body mandated to care, maintain and con truct public roads - this includes what happens on or to the Road Reserve. The Road Authority is a body corporate with powe to sue and be sued. 4.9 To the question - Do the Defendant ha the authorization to build permanent structures, from the Road uthority which 'owns' the Public Road Tl and Road Reserve, the answer is simply that I cannot give a precise or authorative answer as t e RDA is not a Party to the proceedings. Save for the testimony oft e subpoenaed witness from RDA (DW4) there is nothing on record t go by. DW4 did however testify that he is not from the departmen of RDA that deals with the construction of roads BUT did place on ecord that RDA is aware of -J22- the presence of the Defendants and th permanent structures built on the Road Reserve. He further did test ify that the Defendants were not removed from the Road Re . erve during construction / rehabilitation works between 2019 - 023 as their settlement did not affect the road works - aspect of co ! pensating and re-allocating them did not arise. I find that RDA is f lly aware of the Defendants settlement and have not acted. Perh ps RDA has granted them license to stay there - this is just an int lligent guess on my part. 4 . 10 Having found or determined that RDA s the 'owner' or 'licensee' of the subject property and therefore t e correct or right party to maintain, regulate and control the same including the Road Reserve. This said the Plaintiff cannot issue pro ess for or on behalf of RDA for the removal of the Defendants fro the Road Reserve. The Plaintiff cannot be granted possession o the subject property as it is under the control of RDA. 4.11 I note from the record and evidence oft e plaintiff that there may be such of the Defendants that are out ide the Road Reserve and thereby on the portion of land as belo gs to the Plaintiff. To the extent that there are Defendants residin outside the Road Reserve, the Plaintiff is mandated to remove hem. These are squatters without license or consent to be on the laintiff's Farm. 4.12 I now turn to my attention to the Plainti f's submission that the has a claim under Section 4 of the Envir nmental Management Act Number 12 of 2011 which is reproduced nder paragraph 3.3 above. -J23- A perusal of the Plaintiff's claims as per Writ of Summons and Statement of Claim dated October 20t 2021 shows no such claim pleaded by the Plaintiff. In fact nothin in evidence was produced to point to any threat or infringement of he said constitutional rights as stated in the submissions. . uthority in Atlantic Bakery Ltd. vs Zesco Ltd. 1 and Hakaind Hichilema vs Attorney General2 , I must confine to the pleadin s/ claims. 4.13 Having decided on the question of locu standi and determined that the Plaintiff has no legal title or control over the subject property all his other claims must fail. 4.14 The Plaintiff failed to show or prove that there are Defendants settled on his land to entitle him to his claims for injunction, mesne profit and damages for trespass. In his own t stimony PW said; "That the stn.1.ctures keep exp nding as the Defendants continue building and that it as become difficult to tell exactly which stn.1.ctures are ou side of the Road Reserve." The survey Report dated January 3 st, 2023 in the Plaintiff's supplementary bundle of documents fail to verify or clarify the issue of whether the shops, a church and a wr ter pump were built within the Farm or Road Reserve as the Rep or makes no reference to the Public Road Tl and Road Reserve. Cle y the land as granted to the Road Authority to construct Tl no longe belongs to the Plaintiff. -J24- A party must prove his claims even th ugh the Defendants defence collapses, The case of Mhalid Moha ed vs Attorney Generaf3 refers. 5. CONCLUSION 5.1 As far as there is of the Defendants setted outside the Road Reserve, they are to vacate the portion and grant the Plaintiff vacant possession of the land. 5.2 By reason of the foregoing I find that t e Plaintiff has failed to prove his other claims and the action fails, s against the Defendants as settled and built on the Road Reserve. 5.3 Each Party is to bear their own costs. 5.4 Leave to appeal is granted. Delivered at Lusaka on the 17th day of November, 2025. S. CHOCHO HIGH COURT JUD .