George Mumba and Anor v Lawrence Malundu and Anor (2021/HP/0497) [2025] ZMHC 103 (22 October 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) GEORGE MUMBA AND LAWRENCE MALUNDU MARTHA MALUNDU Before the Hon. Mr. Justice G. C. For the Plaintiffs . . In p erson 2021/HP/0497 1st PLAINTIFF 2nd PLAINTIFF 1st DEFENDANT 2nd DEFENDANT e 15th day of October For the Defendants : Mr. M. Kaching of Messrs. Dzeked zek e and Company JUDGMENT Legislation referred to: 1. The Lands and Deeds Registry Act hapter 185 of the Laws of Zambia 2. The Lands Act, Chapter 184 of the 1 ws of Zambia Cases referred to: , / 1. Petit v Petit [1970] C. A,. 77 at 1830 2. Chisanga Mutantika (T / A Monze En erprises) v Luapula Artland Ltd (T/A Knowledge Gates) Ltd (20 6/HPC/0421), 3. Richard Nsofu Mandona v ZANACO, ambia National Oil Co. Ltd & Attorney General (3), S. C. Z. Judg ent No. 32 of 2006. J-1 2021/HP/0497 4. Elias Tembo v Maureen Chulu & Ot ers (CAZ Appeal No. 005/2018), 5. Anti-Corruption Commission v Barn tt Development Corporation Ltd 6. 7. Frank Malichipa v Tanzania-Zambia Railway Authority BP Zambia PLC v Interland Motors, . C. Z. Judgment No. 5 of 8. Ujiji Court Residents Association v ttorney General, 2005/HP /0575, 9. Jeff Simpson Musonda v Peter Davi Lloyd, 2008/HP/1018, 10. Charles Kajimanga v Martemas Chil mya, SCZ Appeal No. 50/2014 11. Edith Nawakwi v. Lusaka City Coun il, SCZ Appeal No. 50/2014 (Appeal No. 26 of 2001), 12. Lucifero v. Castle ( 1887). 13. Chansa v Lusaka City Council (2007 ZR, 69 14. Kaonga v Attorney General (Appeal 9 of 2009) [2012] ZMSC 86 15. Daewood Engineering and Construe ion Ltd v Consolidated Farming Ltd and anor. (Appeal No.2 /2022; CAZ 08 420 of 2021) [2023] ZMCA 181 16. Edith Nawakwi v Lusaka City Counc 1, SCZ Appeal No. 26 of 17. Catherine Goma (Mrs. Goma) v Ma Amoni SCZ/8/240/2013 18. Valentine Webster Chansa Kayope v Attorney General, SCZ Judgment No. 18 of 2011 19. Prisca Lubungu v Obby Kapango an Others and Ndola City Council SCZ/8/ 173/2015 J-2 2021/HP/0497 1. INTRODUCTION 1. 1. This is a judgment arising out of a di pute concerning Plot No. 654 in Chilanga, Lusaka, the "subject pr perty". George Mumba and Albert Rodgers Nsonga the "1st and 2n Plaintiffs" respectively, seek inter-alia possession of the subject pr perty and a declaration that the "1st and 2nd Lawrence Malundu and Martha alundu ' Defendants", respectively, are illegal o cupants or squatters, having no proprietary interest in the subject roperty. 1.2. The Defendants, on the other hand, co tend that the 1st Plaintiff was merely an agent who was entrusted ·th the duty of acquiring the subject property on their b ehalf, and that he holds it in trust for them. 1.3. The Pleadings 1.3.1. Plaintiffs Case 1.3.2. By a writ of summons and statem nt of claim dated 9 th August 2021 , the Plaintiffs each claimed d ·stinct reliefs. The 1st Plaintiff claimed for the following reliefs; "(i) An order that the agree ent between the 1st Plaintiff and the Defendan s dated 3 rd December 2013, is illegal, null and vb id as the 1 st Plaintiff had no property to offer th Defendants when the agreement was entered into (ii) An order that the Defendan s are illegal squatters on Plot Chilanga 654, Lusaka and any J-3 ... 2021/HP/0497 Development if any by the efendants was done at the Defendant's own risk. (iii) An order that any transac ion/s or dealing if any the Defendants may have entered into with any person was/were/ are and is at the parties own risk. (iv) An order that since the 1s Plaintiff has sold the property to the 2nd Plaintifj . the 2 nd Plaintiff is the legal owner of Plot No. Chil nga 654, Lusaka. Payment of mesne profits Ji m 15th March, 2015 to (v) 30th January, 2021 when t e 1st Plaintiff sold the property to the 2 nd Plaintifj (vi) Interest, costs any other re · ef the court may deem fit." 1.3.3 The 2nd Plaintiff, for h is p art sou ght the following reliefs: "(i) An Order that the 2 nd P aintiff is a bona.fide purchaser of Plot No. Chil nga 654, Lusaka from the 1st Plaintiff. (ii) An order that the Defenda s are illegal squatters on Plot Chilanga Lusaka and any development if any by the efendants was done at the Defendant's own risk. (iii) An order that any transac · on/s or dealing if any the Defendants may have ntered into with any person was/were/ are and is at the parties own risk. J-4 2021/HP/0497 (iv) Payment of mesne profits fi om 3(Jth January, 2021 when the 2 nd Plaintiff boug t the property from the 1 st Plaintiff to the date the Defendants will vacate the property in dispute. (v) An order to vacate the property in dispute forthwith in default for an Order for possession of Plot No. Chilanga 654, Lus a and the Defendants bear costs and demolition any illegal structures if any built by the Defenda ts and the Defendants bear costs. (vi) Interest, costs any other re ief the court may deem fit. " 1.3.4 The Plaintiffs argued that the Go ernment of the Republic of Zambia had, under a home em owerment scheme for civil servants, allocated the said proper to the 1st Plaintiff. In support of this, the Plaintiffs averred that th 1st Plaintiff was issued with an invitation to treat on 16th June 015 and subsequently with an offer letter on 2 nd July 2015. It w s further averred that the 1st Plaintiff paid the full consideratio of ZMW 8,084.00 on 1st February 2021 to the Ministry of Fi ance, thereby perfecting the purchase. 1.3.5 The Plaintiffs contended that prior t this allocation and sale, the Defendants had already illegally o cupied the property. They further contended that there was an ·nformal agreement dated 3 rd December 2013 between the 1st P aintiff and the Defendants, wherein it was agreed that, shoul the 1 st Plaintiff eventually acquire the property, he would se 1 it to them. However, the J-5 .. Plaintiffs argued that this a eement was invalid and unenforceable, as the 1st Plaintiff h ad no legal interest in the property at the time. 2021/HP/0497 1.3.6 It was also contended that after obtaining ownership of the property, the 1st Plaintiff offered to sell it to the Defendants at a price of ZMW 90,000.00 but they ailed to p ay. As a result, the property was sold to the 2nd Plaintif on 30th January 2021 for th e same amount, and the Defendants ere duly notified. 1.3.7 The Plaintiffs further averred that teps were taken to formalise the 2nd Plaintiff's ownership, inc uding th e preparation and lodgment of a property diagram ith the Ministry of Lands. Despite this, the Defendants have legedly refused to vacate the premises and continue to occupy t e subject property, operating a private s chool and denying the nd Plaintiff enjoyment of the property. 1.3.8 It was in this vein, that the 1st Plai tiff sought a declaration that the 2013 agreement was illegal and void , as he lacked title at the time, and a declaration that the De endants are illegal squatters on the property and that any devel pments made on the subject property were done at their own ris 1.4 The Defendants' Case 1.4.1 The Defendants denied the Plaintiff's sertion that they were mere squatters on the property. Their posit on is that their presence on the subject property was not unlawful. h ey furth er contend that the J-6 .. 2021/HP/0497 1s t Plaintiff had already benefitted f om a separate Government housing empowerment programme thr ugh the allocation of another property Plot No. 1074 in Sangalala, C ilanga and was therefore not eligible to benefit again through the roperty in dispute. On that basis, they questioned the legitimacy f 1st Plaintiffs acquisition of the subject property. 1.4.2 The Defendants denied the existence of any understanding as between themselves and the 1st Plain ti f to sell the property to them only after the Government had formally allocated it to the 1st Plaintiff. Their contention is that there was a prior agreement between themselves and the 1st Plaintiff on 3 rd December 2013. This agreement, according to the Defendan , contained an express term that the 1st Plaintiff would purchase t property on their behalf, in recognition of their status as occupan s. The Defendants relied on this agreement for their continued possession of the subject property. 1.4.3 While the Defendants do not dispute 1hat the 1st Plaintiff engaged th e Ministry of Lands for the purposes , f obtaining title and that the relevant diagrams were prepared, they . dmit the claim that they are operating a school on the subject prop rty. They however deny that this constitutes illegal or unjustified oc upation. 1.4.4 In essence, the Defendants challenged t e 1st Plaintiffs' right to resell the property to the 2nd Plaintiff withou consulting them first, given the history of the arrangement and the· prior understanding. J-7 2021/HP/0497 2 . THE EVIDENCE 2 . 1 The Plaintiffs Evidence 2.1.1 At trial the Plaintiff called two witnes es. The first witness was Mr. George Mumba, a 58-year-old retiree d former civil servant under the Ministry of Agriculture and Fishe ies. He testified that he was offered the subject property by the G vernment of the Republic of Zambia as part of the public service ome empowerment scheme. According to him, this offer was made on or about 15th March and 2 nd July 2015, and he accepted it y making payment for the property as evidenced in the Plaintiffs' undle of documents. 2.1.2 He testified that prior to the official of£ r of the property, he entered into an agreement with the Defend ts on 3rd December 2013, wherein it was agreed that he woul , in his capacity as a civil servant, apply for and purchase the su dect property on their behalf, and thereafter relinquish all rights o them once the offer was secured. However, he stated that afte he was formally offered the property by the Ministry of Lands, the Defendants failed to honour their end of the contract. After p aying r the property, he offered to transfer it to the Defendants at a price , f ZMW 90,000.00. However, the Defendants failed to make the pay 2.1.3 Consequently, he sold the property to e 2 nd Plaintiff, for the same amount. He further testified that the Defendants have refused to vacate the premises despite having no legal entitlement to it, and that they are running a school busin ss from the property to the exclusion of the Plaintiffs. He stated t at this has caused him and the 2nd Plaintiff loss of use and enjoyme t of their property, while the J-8 .. 2021/HP/0497 Defendants continue to benefit from i without paying any form of rent or mesne profits. He also indicat d that a previous suit by the Defendants over the same proper y was dismissed by the Subordinate Court for want of jurisdic · on. 2.1.4 The second witness was Dr. Albert ogers Nsonga, a 54-year-old fisheries and aquaculture expert, who onfirmed in evidence that in December 2020, the 1st Plaintiff offere to sell him the property for ZMW 90,000.00. After viewing the roperty and inspecting the relevant documentation such as th 1st Plaintiff's Government correspondence, and official receipts he then carried out due diligence with the Ministry of Lands d other government offices. Satisfied with the legitimacy of the offer he paid the agreed sum and an agreement of sale was executed on · 0 th January 2021. 2.1.5 He testified that despite being ma , e aware of the sale, the Defendants have continued to occupy the property and operate a school business without his consent , r any form of payment. He stated that this stance continues to d prive him of the use of the subject property, which he lawfully pur hased, while the Defendants continue to profit from it. 2.2 The Defendants' Evidence 2.2.1 Equally, the Defendants served as their own witnesses in support of their case. The 1st Defendant, Lawrenc Malundu was the first and the 2nd Defendant, Martha Katukula M undu, testified last. 2.2.2 The 1st Plaintiff testified that he lives t the subject property . His evidence was that he and the 2 nd Defen ant have been occupying the J-9 2021/HP/0497 premises since 2002. His further testimony was that on or about 23rd June 2008, he and the 2 nd Defendant ere recommended by a former area councilor, one Peter Tembo, to th Kafue District Council (KCC) to be recognised as sitting tenants. He testified that KCC later confirmed his sitting tenancy appli ation, in a letter dated 6 th October 2009. 2.2.3 He went on to explain that in 2013, agreement was entered into with the 1st Plaintiff regarding the sale f the Government pool house located on the same plot. He said this a · reement, dated 3rd December 2013, was made on the understandi g that the 1st Plaintiff was acquiring the property on behalf of th sitting tenants and not for personal ownership or resale. He expl ed that after the agreement was signed, and based on the Plaintiff' assurances, he and the 2nd Defendant began constructing and ren vating structures on the plot to establish a community school. 2.2.4 It was his testimony that 1st Plaint ff was only entitled to be reimbursed for the costs incurred in fa ilitating the purchase, since it was done for the benefit of the sitting enants. He also claimed that he was never consulted when the 2nd laintiff allegedly bought the land from the first Plaintiff, and there£ re, he does not consider the 2nd Plaintiff to be a bona fide purchase for value without notice. 2.2.5 The second plaintiff, a 43-year-old tea her and co-occupant of the same property, gave broadly similar te timony as the first witness. She stated that she had been living at he subject property with the 1st Defendant since 2002 and confirm d the process by which the then area councillor, a Mr. Tembo, mad his recommendation to the J-10 Kafue District Council. She also ech ed the 2009 confirmation of tenancy by the Council and the subseq ent signing of the agreement 2021/HP/0497 with the 1st Plaintiff in 2013. 3 THE PLAINTIFF'S SUBMISSIONS 3. 1.1 The gist of the Plaintiff's submissio s in this case is that the Defendants are unlawful occupants { the subject property, who have no legal or equitable interest in it, Id are not entitled to remain there. They also contend that the 2 nd Jain tiff having since acquired the property from the 1st Plain tiff, is a ona fide purchaser for value without notice of any claim or interest ram the Defendants. 3.1.2 The issues for determination by th Court, as framed by the Plaintiffs, are as set out in paragraphs .2 through to 3.11 below. 3.2 Whether the Defendants were tenant of the Government of the Republic of Zambia before the pro erty was sold to the 1st Plaintiff. 3.2.1 The Plaintiffs argue that the Defendant have failed to produce any evidence of tenancy with the State n that there are no lease agreements, rent receipts, or formal r cognition as tenants. They contend that the Defendants occup1e the premises without th e consent of the State. 3.2.2 In support of this argument, they relie on the case Petit v PetitflJ [1970] C. A. 77 at 1830, which states t at if the property in question J - 11 1s land, there must be some laWful basis or conveyance demonstrating its acquisition. 2021/HP/0497 3.3 Whether the Defendants were entitl d to purchase the property as sitting tenants. 3 .3 .1 The Plaintiffs submitted that under th Government housing policy, only civil servants were eligible to pu chase government property. The sale agreement itself acknowledg 1st Plaintiff, was purchasing "on behalf of' the Defend s. 3.3.2 This, the Plaintiffs argue, proves that t e Defendants knew that they had no direct entitlement and inst ad relied on an informal arrangement that had no legal backing 3. 4 Whether the Defendants are lawful t nan ts of the property. 3.4.1 The Plaintiffs argue that the Defendan s have not shown that they ever paid rent at all to the State r had any formal tenancy arrangement with the Government. 3.4.2 It is the Plaintiffs' submission that because of this failure to demonstrate payment of rent at any p int in time, the Defendants' continued occupation of the subject pr perty is unlawful. 3 .5 Whether the agreement was illegal a 3.5.1 The Plaintiffs submitted that the agr ement entered into on 3 rd December 2013 was unlawful, as the s t Plaintiff had not yet been J-12 2021/HP/0497 form ally offered or sold th e prop erty b the State. Th ey argued that the State could not be bou n d by an greement made before it had even conveyed the property. 3.5.2 The Plaintiffs relie d on Mutantika T '. A Monze Enter rises v Lua ula Artland Ltd ,T '. A Know led e Gates Ltdf2J (2016/HPC/0421), where the High C urt held that even if parties agree to terms that contravene statu ory provisions (su ch as the Moneylenders Act in that case), such greements remain illegal and u nen for ceable. It was argued that the e is no provision under the Government housing policy permitting civil servant to buy a house on behalf of a p erson who is not eligib l 3 .6 Whether Chilanga Constituency and Kafue District Council had authority to recommend the defend nts for purchase . 3.6.1 The Plaintiffs argue that only the Mini ter of Works and Su pply, as custodian of Government p roperty, ha t h e authority to recommend individuals for the pu rch ase of State p operty. 3.6.2 It is their position t h at therefore, any recommendations made by the Constituen cy Office or the Kafu e Distri , t Council were without legal backing and therefore of no legal effect. 3.7 Whether the 1st Plaintiff was entitled to be offered and purchase the property by virtue of being a Civ 1 Servant. 3. 7 . 1 The Plain tiffs argue that the 1st P · n tiff qualified under the Government's housing sale program, w ich expressly reserved offers J-13 2021/HP/0497 for Government employees. The 1 st Pltntiff's entitlement, therefore, was not based on the informal agreem nt with the Defendants. The Plaintiff's drew inspiration for this · gument from the case of Richard Nso Mandona v ZANACO ambia National Oil Co. Ltd & Attorney Generalt3 1 , S. C. Z. Judg ent No. 32 of 2006. 3.8 Whether the 2 nd Plaintiff is a hon fide purchaser for value without notice. 3.8.1 The Plaintiffs submitted that the 2°d Plaintiff carried out a due diligence exercise before purchasing t e property. The documents provided by the 1 st Plaintiff showed 1 wful title and there was no caveat or warning of any adverse claim 3 .8 .2 For this proposition, the Plaintiffs c ted a number of cases 1n support. One such case was Elias mbo v Maureen Chulu & Others<4 J (CAZ Appeal No. 005/2018 , wher e the Court of Appeal held that in the absence of a caveat or r corded interest, a purchaser is not negligent for failing to investigate. 3.8.3 Further, the Plaintiff relied on Anti-Corruption Commission v Barnett Develo oration Ltdf5J, S. C. Z. Judgment No. 5 of 2008, where the court therein affirmed that under Section 33 of the Lands and Dee s Registry Act, a certificate of title is conclusive evidence of o which can only be cancelled on the basis of fraud or impr J-14 3.9 Whether the Court can compel t e 1st Plaintiff to sell the property to the Defendants. 2021/HP/0497 3. 9 .1 The Plaintiffs quite spiritedly argued t at the Court cannot force the 1st Plaintiff to sell her property agai t her will, especially in the absence of consideration or binding reement. In support of this argument the Plaintiffs relied on Fr nk Malichi a v Tanzania Zambia Railway Authorityf6J, S . C. Z. ppeal No. 21 of2007 where the Court held that no law compel an unwilling party to sell property. 3.9.2 In further support of this proposition, reliance was also placed on the case BP Zambia PLC v lnterland otors f7J, S. C. Z. Judgment No. 5 of 2001 , which rejected th imposition of contractual obligations by the Court without mutu consent. They also cited the case of u·i ·i Court Residents Associ · tion v Attorne Generalf8J, 2005/HP/0575, amongst others whic held that the Court has no power to deprive a citizen of property 1 ully acquired. 3 .10 Whether the Plaintiffs are entitled t recover the property from the Defendants. 3 . 10. 1 The Plaintiffs contended that he Defendants are illegal squatters and therefore cannot resist eviction. In support of this position, they relied on the case of -=J◄-=eJJ+-=-=:.=..;;.&::.=-=-..:....::....::..:.:==-==--=--==..::..:;_.;;........::c....::.....;c=..:.... David Lloydf9J, 2008/HP/ 1018, wher the High Court adopted the reasoning in Bristol Cor oration v ose, holding that where a person remains on land without the lie nse or consent of the lawful J-15 owner, the rightful owner 1s entitle to a summary order for possess10n. 2021/HP/0497 3 .11 Whether the defendants are liable t pay mesne profits. 3 .11.1 The Plaintiffs argue that bee use the Defendants have unlawfully remained on the property, epriving the rightful owners of possession and use, they are liable or mesne profits. In support of this argument, they placed reli Halsbury's Laws of England, Vol. 27 (4th Ed.), paragrap 225, which defines mesne profits as the damages suffered by a 1 dlord kept out of possession. This may be the rental value of the 1 d or actual losses caused by the trespasser's occupation and furt er on the case of Charles Kaiimanga v Martemas Chilemyan<1 ~, SCZ Appeal No. 50/2014, where it was held that damages e recoverable for unlawful occupation. 4.0 DEFENDANT'S FINAL SUBMISSIONS 4.1 In their final submissions, the Defen ants argue that the dispute centers on a breach of trust and a mis se of an agency relationship. They say they engaged the 1st Plaintiff as their agent to help them purchase and process ownership doc ents for a piece of land in dispute which they were already occ pying. Instead of following through with that agreement, the 1s t Pl ·ntiff allegedly went back on his word and sold the property to the 2nd Plaintiff, who then sued them for possession. J-16 2021/HP/0497 4.2 In view of the above, the Defendants re uested the Court to consider the following three main legal issues : 4.2.1 Whether a Certificate of Title is Conclusive Evidence of Ownership. 4.2.2 The Defendants argue that under Sec ion 33 of the Lands and Deeds Registry Act, Chapter 187 f the Laws of Zambia, a certificate of title is normally conclusive roof of ownership. However, it was pointed out that the law also pro · des exceptions, especially in cases involving fraud or trust relationsh ps. It was argued that in the present case, the 1st Plaintiff holds the t tle not as true owner, but in trust for them, having acted as their age t. 4.2.3 The Defendants submitted that the ceritificate of title was obtained through an abuse of that agency r elati , nship, and therefore the 1st Plaintiffs name on the title should not b seen as final. They also cited Section 54 of the same statute, which , lows courts to look behind a title when proper evidence is brought. n this case, the Defendants believe they have shown enough to rebu the presumption that the 1st Plaintiff owns the land in his own right. 4.2.4 Whether the Second Plaintiff was a B na Fide Purchaser Without Notice. 4.2.5 The Defendants submitted that the 2 nd laintiff does not qualify as a bona fide purchaser. They submitted th . t in equity, a party claiming to b e a bona fide purchaser must meet the three conditions set out below: J-17 2021/HP/0497 4.2.5.1 They must have acted in good f "th (bona fide); 4.2.5.2 They must have given value (p d for the property); and 4.2.5.3 They must not have had notice f any prior interest. 4.2 .6 In support of the above propositions, e Defendants relied on the principles set out in the case Edith Nawakwi v. Lusaka Cit Council f11J, SCZ Appeal No. 50/201 (Appeal No. 26 of 2001), which emphasized that buying real e tate requires more careful investigation than buying ordinary goo s. In the case at hand, they contended that the 2 nd Plaintiff failed in his duty to make reasonable inquiries. The property was clearly occu ied b y tenants, yet he did not ask them about their rights or status. 4.2.7 That failure, argued the Defendants, ounts to constructive notice under equity. They also pointed out t at the 2nd Plaintiff admitted under cross-examination that he did no have a certificate of title and failed to exercis e due diligence. As su h , the Defendants argue he cannot be treated as a purchaser for val e without notice and should not benefit from equitable protection. 4 .2 .8 Whether the 1st Plaintiff Breached th Duties Owed as an Agent. 4 .2.9 The Defendants' main argument lie 1n the supposed agency relationship between them and the 1st Pl ·ntiff. It was the Defendants' submission that they appointed the 1st lain tiff to act on their behalf, using his position as a civil servant to 1acilitate the purchase of the subject property, which they h ad bee occupying for years. The Defendants sought to draw my attentio to the established principles J-18 2021/HP/0497 on agency, including that an agent mu t act in the best interests of the principal; must disclose any confli t; and cannot secretly act to the principal's detriment. They referre the court to a number of English law cases to substantiate their position. One such case was Lucifero v. Castle f1 2J (1887). In Lucffero, for instance, an agent bought a property for himself and resol! it to his principal at a profit without disclosure. The court held tha this was improper, and the profit had to be returned. The Defen ants argued that the same principle is applicable to the facts in iss e. 5.0 LAW, ISSUES AND ANALYSIS 5.1 I have very carefully reflected on the pl adings in this action, the oral and documentary evidence tendere , as well as the parties' respective submissions for which I indebted. I would distill the legal issues arising on the facts of this case as being the following: 5 .1.1 Whether the Defendants ccupation and Council recommendation conferred id interest in the subject property, Plot 654 Chilanga; 5.1.2 Whether the agreement dated 3r d ecember 2013 constituted a valid and enforceable contract; 5.1 .3 Whether the 1st Plaintiff acquired gal and beneficial ownership of Plot No. 654; 5.1.4 Whether the sale to the 2 n d Plain ti f was valid and whether he is a bona fide purchaser for value wiithout notice; J-19 2021/HP/0497 5 .1. 5 Whether the Plaintiffs are entitl d to possess10n and mesne profits. 5.2 I proceed to consider these questions, ach in turn, below. 5.3 Whether the Defendants' upation and Council recommendation conferred a valid in erest in Plot 654 Chilanga. 5 .3.1 It is an undisputed fact that the Defen ants have been in occupation of the property since around 2002 as evidenced by the letter from the Kafue District Council, (the "Co ncil"), which acknowledges their presence and somewhat app e±ed to have endorsed th eir application as sitting tenants. Howeve much the Council's actions might have given the Defendants a se se of assurance in validating their occupancy, the fact still r emain · that the process was never carried forward beyond that point. It s mply was not finalised. 5.3.2 No evidence before this court was le to show that the Council's recommendation translated into an of er from the Commissioner of Lands, nor was there any allocation or grant of title that followed. 5.3.3 As the Supreme Court emphasised n Chansa v Lusaka City Councilt 13l, (2007) ZR, 69, even when recommendation is made by a council, no legal right or interest is r eated unless and until the Commissioner of Lands issues an alloc tion. It was held as follows: "The authority to consider pplications for land allocationfrom members ofth public is vested in the President of Zambia who has elegated this authority to the Commissioner of Land As per Circular No. 1 of 1985, an applicant in Lusa a has an option either J-20 2021/HP/0497 to apply directly to the Comm ssioner of Lands or to apply through the respondent who has been delegated powers to receive applicatioAs for land allocation from members of the public. 1J is also clear from the evidence that where a membe of the public opts for the second route, the respon ent is only mandated, firstly, to advertise any land vailable; secondly, to receive applications from me bers of the public; and thirdly, to make endations to the Commissioner of Lands. _T_h_e_,__ ____ a_ll_o_c_a_t_e_ la_n_d and make an o er to remains in the Commissi licants still Lands. The res ondent onl makes ommendation to the Commissioner o Lands who a er receivin these recommendations has the dis retion to either acce t or re ect the recommendatio " (underlined for court's emphasis). 5.3.4 It follows therefore that recommendatio s are not sufficient to confer land rights. The letters relied upon by t e Defendants were only part of a process that never matured into a 1 wful allocation, and therefore cannot displace the 1st Plaintiff's leg title, which was lawfully acquired through the correct channels d confirmed by a certificate of title. 5.3.5 It is also not in dispute that the propert in question is a Government pool house. Therefore, the Defendants laim of entitlement over the property must be assessed within the r levant guidelines on the sale J-21 2021/HP/0497 • of Government pool houses. In light of this, I take judicial notice of the fact that in 1996, the Governmen of the Republic of Zambia, aiming to empower civil servants wit personal houses, crafted a policy whereby sitting tenants of poo houses were accorded an opportunity to purchase the said house . at an affordable rate. 5.3.6 In the light of the judicial notice I have aken, I am compelled to have regard to the instrument by which the policy of government was implemented, namely, the 'Han , book on the Sale of Government Pool Houses'. Specific ly, clause 2.0 of the handbook set out the eligibility criteri , in terms of which an eligible applicant had to have been - "a. A confirmed civil servant who is in the service and is a legal tenant; b. A civil servant who retir d or was retrenched, but was not paid termi al benefits and is a legal tenant. c. A civil servant who retir d or was retrenched, but was re-appointed , n contract/gratuity terms and conditions of d. A spouse or children of a civil servant who died, but was not paid t rminal benefits and was a legal tenant; and e. A civil servant who quali es to own land under the provision of section 3 '2) and (3) of the Land Act No. 29 of 1995. " J-22 2021/HP/0497 5.3.7 The expression 'legal tenant' features uite prominently in the text above. It is an expression which, help lly, has been the subject of interpretation by the Supreme Cour . In the case of Kaonga v Attorney General <141 a legal tenant w s defined as follows; " ... In the context of governmen pool houses, the legal tenant is the one allocate the house by the Government Housing Committ e under the Ministry of Works and Supply, evidenced y an allocation slip." 5.3.8 Although the Defendants claimed to ha e been tenants, the fact that their occupation of the subject house di not originate from allocation by the Government Housing Committe , means that they cannot be considered legal tenants if the Commit ee did not also subsequently acknowledge them as such. Long term occupancy does not, in itself confer tenancy rights. What establishe legal tenancy in the context of Government pool housing is t h e issu ce of an allocation slip. The Defendants in this case have not produ I ed any allocation slip and as such, cannot be considered legal tenant of the property. 5.3.9 The court in the Kaon a v Attorne . eneral <141 case went on to remark that: "The government, as owner of houses, offered houses to those who met the conditio s prescribed in Clause 2.2, which have been en merated above. The appellant was not a civil s rvant. As we said in Beatrice Muimui V Sylvia c h anda supra being a sitting tenant was not the sol I criterion. We recently J-23 2021/HP/0497 held in the case of Hamu wele and Another V Si alo and Another that: "The 2 nd respondent was not an employee of Lima Bank. She had no right to pure ase the house" Equally in this case the a pellant was not an employee of government and she had no right to purchase the house. The ft st, second and t hird grounds lack merit. The enti e appeal i s therefore dismissed. " 5.3.10 It is fairly clear, from the cases d scussed above that there are certain preconditions or criteria that person must satisfy or meet in order be eligible to purchase a Gov rnment pool house. That the Defendants failed to meet the set iteria, is quite apparent. If anything, what emerges on a proper onsideration of the evidence is that the Defend ants h ad full know edge of the fact t h at they did not fall within any of the categorie above and that they were ther efore ineligible to a pply for the pr perty. 5.3 .11 This explains why, in my conside ed view, the Defendants were subsequently motivated to sideste p e sy stem entirely by engaging the 1st Plaintiff. They knew that the 1 t Plaintiff, unlike themselves, was an eligible civil servant who cou d acquire the house on their behalf and hoped he could later trans er it to them. In any case, the Cou ncil was not the registered prop ·etor of the subject property, for if it were, a land record card or oth r suitable evidence of Council authority over th e subject property w , u ld have been produ ced. J-24 " 5.3.12 What is more, by section 6 f the Lands Act, property 2021/HP/0497 previously reposed in the Council wa , from the date of enactment of the Lands Act, deemed to be hel directly from the President, whose delegate is the Commissioner or Lands from whom the 1st Plaintiff received an invitation to trea . Accordingly, I find that the Defendants do not hold any valid inte est in the property. The letter from the Council, while acknowled · · ng their occupancy of the subject property, does not amoun to an allocation. What is required is an allocation slip issued b the Ministry which could not be acquired in their case, as they w re non civil servants. In the absence of that, I am inclined to ree with Plaintiffs that the Defendants cannot be said to have an lawful claim to the property. 5.4 Whether the agreement dated 3rd D cember 2013 constituted a valid and enforceable contract 5.4.1 The Defendants relied on an agreement dated 3rd December 2013, in which the 1st Plaintiff undertook to quire the property on their behalf. They argued that he acted as agent and that the beneficial interest remained with them as sitting tenants. They further argued that this created an implied trust. 5.4.2 The 1st Plaintiff on the other hand con ends that the agreement was informal and made at a time when neit er party had any legal title or authority over the land. In his evidenc . , in order to demonstrate its informality, he described the agreem t as a 'beerhall agreement' Furthermore, the Defendants did not m e any payments towards the J-25 • acquisition of the land, nor did they reimburse the 1st Plaintiff after he paid for the property in full. 2021/HP/0497 5.4.3 While the existence of this agreement s not denied, its legal effect must be closely examined. It is trite th for a contract to be valid, it must contain the essential elements o capacity to contract, offer, acceptance, consideration and an inte tion to create legal relations. In this instance, the offer is said to ha e come from the Defendants and was accepted by the 1st Plaintiff, w o was to act as their agent in applying for the property in question. 5.4.4 In relation to capacity, care must also e taken to uncover the true nature of the contract. Was it a contract of agency or a contract of sale of property? I would say without interro ating the matter in any great detail, that it is doubtful whether the 1st Plaintiff had capacity to contract to sell a property that he did ot, at the material time, own. It is equally doubtful whether a party c uld lawfully engage a person as agent to enter into a contract which he principal does not himself have capacity to enter into, in this cas by reason of the principal's ineligibility to buy the subject property. Regardless of whether it was a contract of agency or a contract of s · e, what is clear is that it no evidence of consideration was provided or either. 5.4.5 A review of the agreement suggests tha the Defendants was required to pay for the property once it was offere to the same. It was couched as follows: "It is agreed that George Mu ba being a government employee shall purchase the aid property on behalf J-26 2021/HP/0497 of the sitting tenants, Lawrence Malundu and Martha Katukula who shall pay for th property." 5.4.6 In the case of Daewood E · · and Construction Ltd v Consolidated Farming Ltd and Ano 151 the court had the following to say: "We agree with this position b cause for a contract to be enforceable there must bef onside ration. It is an indispensable element of a c ntract and a contract without consideration is not e orceable. Lord Lush in the landmark case consideration must "consist either in some right, interest, profit, or benefit ace ing to the one party, or some forbearance, etriment, loss, or responsibility, given, suffered or undertaken by the other." 5.4.7 Considering the facts in issue, there i nothing before this court to show that the Defendants paid any mo ey or incurred any cost at the time they entered into the agreement. or is there any evidence that the 1st Plaintiff received any benefit or a vantage in return for agreeing to act on their behalf. The agreeme simply shows that the 1 st Plaintiff would obtain the property and ater relinquish his interest in favour of the Defendants, but it d es not show any form of compensation or cost-sharing. In that sense, there appears to be a failure of consideration, and without at, the agreement does not meet the threshold of a binding contrac . J-27 .. 5.4.8 In the absence of such consideration, the agreement cannot be said to meet the legal requirements of a vali contract. Accordingly, I am unable to attach any binding legal effec to the said agreement. 2021/HP/0497 5.5 Whether the 1st Plaintiff acquired leg 1 and beneficial ownership of Plot No. 654. 5.5.1 It is not in dispute that the 1st Plaintiff as offered the property by the Ministry of Lands. He accepted the of£ r and made payment to the Ministry of Finance. A certificate of titl was subsequently issued in his name. 5.5.2 Section 33 of the Lands and Deeds egistry Act, Chapter 185 of the Laws of Zambia, provides that a c rtificate of title is conclusive evidence of ownership, subject only to ratters endorsed thereon or to fraud. Further, section 54 reinforce , this by stating that such certificates shall be received in all cour as conclusive proof of title. 5.5.3 As the acquisition of the property by th 1st Plaintiff was done lawfully under the Government's hosing scheme it follows that in the absence of any allegation or proof of fraud in th issuance of the certificate of title, his title in the property is unimp achable. I find and hold that the 1st Plaintiff became the legal owner f Plot No. 654 upon issuance of the certificate. That title is protected under law unless it is shown that it was obtained by fraud or m stake, which has not been demonstrated in this case. J-28 2021/HP/0497 5.6 Whether the sale to the 2 nd Plaintiff w s valid and whether he is a bona fide purchaser for value without otice. 5 .6. 1 The doctrine of bona fide purchaser for value without notice applies to protect innocent purchasers who a quire property in good faith without notice of any prior equitable clai s. Thus, in the case of Edith Nawakwi v Lusaka City Councill 161, t e Supreme court highlighted the importance of making inquiries as a prudent purchaser. 5.6.2 In this case, the presence of tenants on he land may have put the 2 nd Plaintiff on inquiry. However, I am satisf ed from the evidence that the 2 nd Plaintiff took reasonable steps by condu cting a search. The evidence shows h e conducted due dilige ce, viewed the property, and purchased it from the 1st Plaintiff for MW 90,000.00. There is no evidence he had actual or constructi e notice of any competing interest. He was informed by the 1st Pl · tiff that the Defendants had failed to purch ase the property when o fered, and that they had no legal interest. 5.6.3 The Defendants themselves confirmed ring cross-examination that they had not paid anything towards the acquisition. Thus, I find and hold that the 2nd Plaintiff qualifies as a ona fide purchaser for value and acquired good title to the property. 5.6.4 The Plaintiffs sought possession of the roperty. The law is clear that when a rightful owner is kept out of pos ession without lawful excuse, the court will order eviction. In the ca e of Catherine Gama (Mrs. Gama} v Mary Amonil 171,the court gran d possession where a person rem ained in occupation without th landowner's consent. The J-29 • 2021/HP/0497 Plaintiffs have also prayed for mesne compensation for the Defendants' unlawful occupation. In alentine Webster Chansa Kayope v Attorney Generall 181, the upreme Court held that a person deprived of the use of their lan by an unlawful occupier is entitled to mesne profits, which can be easured by either the market rental value or other reasonable estima ·on of loss. 5.6.5 The evidence on record shows that t e Defendants are running a private school on the land and are deri · g commercial benefit from it while denying the 2nd Plaintiff the use and benefit of the property. Mesne profits accrue to the title hold r. The title holder is the 1st Plaintiff, although h e has sold to t e 2nd Plaintiff. In all the circumstances of the case, I have some , isgivings about the sincerity of the 1st Plaintiff in his dealings wi the Defendants. He clearly signed an agreement with them, from w1ich they subjectively believed that they could acquire the subject pro , erty. Yet the law was against them, firstly because the 1st Plaintiff co ld not have contracted to sell that which did not belong to him a the time of the purported agreement, and secondly because the Defendants themselves were ineligible to buy the subject property, h ving not been civil servants. 5.6.6 By reason of the insincerity of the 1st Pl ·ntiff, I consider that it would be inequitable to let the 1st Plaintif receive the mesne profits. However, from the date of this judgm t, the mesne profits for the subject property - or, to use a more£ iliar expression, the rentals - are to accrue in favour of the 2 nd Plainti f. In the circumstances, I am satisfied that an award of mesne profit . is warranted, but only as of the date of my judgment declaring th 2nd Plaintiff as owner of the subject property. J-30 ... 2021/HP/0497 5.6.7 Further, the Defendants have argued that they made structural developments on the property, includin the construction of a school. While the court is not unsympathetic to the Defendants for deploying resources by way of the structural im I rovements made, the law is settled on this point. A person who is n t the legal owner of land, but proceeds to develop it, does so at own risk. As held by the Supreme court in the case of Prisca Lu u v Obb o and Others and Ndola City CounciZl19l; "In fact, we have, in a n mber of cases in this jurisdiction, held that a dev loper of land belonging to another does so at his/he peril as he/she stands to lose the value of those im rovements." 5 .6.8 In the present case, the Defendants h d no legal claim or ownership over the property at the time of co struction. It was therefore premature of them to proceed with ·mprovements before the 1st Plaintiff had secured title to the land. t is deeply troubling t h at the Defendants opted to make structural changes on the mere assumption that a future contract will materialise. Accordingly, any loss suffered by the Defendants as a r sult of these improvements is one which, unfortunately, they must b ar, h aving proceeded without a secured legal right. They cannot be , ompensated for constructing upon land which they did not have titl to. 5.6.9 On the equitable principle that equity cts inpersonam, which in this context I mean that it acts as betwee two parties without binding third parties, I adjudge that as bet een the 1st Plaintiff and the J-31 2021/HP/0497 Defendants, the principle that equity oes not suffer a wrong to go without a remedy will operate to ena le the Defendants to recoup their loss somewhat by retaining the r ntals up to date of judgment. Thereafter, because of my declaration f the 2 nd Plaintiff as owner of the subject property, the rentals are to accrue to the 2 nd Plaintiff, as from the date of perfection by seal, of is judgment. 6. 0 Final Orders 6.1 In view of the foregoing, I make the foll wing orders: 6.1.1 I declare that the agreement betw en the 1st Plaintiff and the Defendants dated 3rd December 013, to the extent that it purported to have been a contract f sale in respect of Plot 654, Chilanga, is null and void for lack f capacity, on the part of the 1st Plain tiff at the material time, to validly off er or sell the said property; 6 .1.2 I declare that the 1st Plaintiff valid y acquired ownership of the subject property from the Governme t and having validly sold the said property to the 2 nd Plaintiff, t e 2 nd Plaintiff is a bonafide purchaser for value of the legal e tate, without notice of any encumbrance. 6.1.3 I order that the Defendants do with· forty-five days from the date of perfection by seal of this judgme t , yield vacant possession to the 2 nd Plaintiff of Plot No 654, Chil ga. J-32 .. 2021/HP/0497 6. 1. 4 I further order that as from the date , f perfection by way of sealing of this judgment, payment of mesne rofits (rentals) shall begin to accrue to the 2 nd Plaintiff. For the av idance of doubt - (i) Notwithstanding that the Defe dants shall only yield vacant possession to the 2nd Plaintiff n or before the lapse of 45 days, rentals shall with effect f om the date hereof accrue in favour of and b e accountable t the 2 nd Plaintiff; (ii) The Defendants shall not, whet er directly or by any servant, agent or proxy of any kind, en er into any transaction with any third party to frustrate, int] rfere with, or in any manner whatsoever undermine or pre udice the rights of the 2 nd Plaintiff as pronounced in this J dgment; and (iii) If the Defendants shall not ha e yielded vacant possession within the time prescribed in is judgment, th e order to vacate the subject property sh 1 be enforceable by writ of possess10n. 6.1.5 The Plaintiff's shall have their cos s, limited to out of pocket expenses. 6 .1. 6 Leave to appeal granted. Delivered at Lusaka 15th October 2025 . GC MULE HIGH COURr -d-~ UBLIC OF ZAMBIA J-33 HIGH COURT OF ZAMBIA • t 5 OCT 2025 ~ G. MULENGA. J I P. O BOX 5006 7, LUSAKA