Gly'son Chisanga v Christopher Simbeye and Anor (APPEAL NO. 197 OF 2023) [2025] ZMCA 176 (18 November 2025)

• IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 197 OF 2023 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: GLY'SON KASONDE CHISAN APPELLANT REGISTRY 2 AND CHRISTOPHER SIMBEYE · 1ST RESPONDENT JOYCE NAMFUKWE 2ND RESPONDENT CORAM: CHASHI, NGULUBE AND BANDA-BOBO, JJA. On 12th and 19th November 2025 For the Appellant: For the 1st and 2nd Respondents: C. Shamakamba (Ms)) Messrs Shamakamba & Associates L. K. Mbaluku (Ms)) Messrs L K Mbaluku and Company JUDGMENT CHASHI, JA delivered the Judgment of the Court. Cases referred to: 1. Smith Silwana v The Attorney General & Another - SCZ Appeal No. 1 o/2019 -J2- 2. Lusaka City Council & Another v Grace Mwamba & 4 Others - SCZ Appeal No. 21 of 1999 3 . Zambia Revenue Authority v Dorothy Mwanza & Others (201 OJ 2 ZR 181 Legislation re (erred to: 1. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of Honourable Madam Justice Y. Chembe, delivered on 26th October 2022. 1.2 In the said Judgment, the learned Judge declared that the 1s t and 2 nd plaintiffs, now the 1st and 2 nd Respondents, had proved that they were the lawful owners of Stand 14501, Ndola. 1.3 The learned Judge directed that, certificate of title no. 94448, which was issued to the defendant, now Appellant in respect to Stand 14505, Ndola be cancelled. 2.0 BACKGROUND -J3- 2.1 An annotation to the background in this matter is that, the Copperbelt School of Agriculture (the School}, who were not parties to this matter, were intially offered property No. L/38154/M Ndola, as evidenced by the letter of offer from the Ministry of Lands, dated 12th November 2009. 2. 2 On discovering that this land was located in Chichele Forest No. 38, which had not been degazzetted, they were relocated to Itawa and allocated land under the same propery number L/38154/M, which was a subdivision of Lot 3815/M Itawa, adjancent to the land which belonged to Kafubu Dairy Farm. 2.3 Upon discovering that there was continued misuse of the property number, it was allocated a new number, namely Stand No. 12894 ltawa, Ndola 2.4 Subsequently, the School noticed that there were people who had invaded their property. Upon investigations, it was discovered that it was Ndola City Council (the Council) who had demarcated that land and offered it to individuals as residential properties. One of those who was offered -J4- land was the Appellant, who was offered Stand 14505, as evidenced by letter dated 16th January 2014. 2.5 That is what prompted the School to commence an action against the Council, under cause No. 2014/HN/013, which culminated into a consent Judgment of 10th November 2010. 2.6 The parties consented as follows: "(a) The plaintiff Copperbelt School of Agriculture retains the land namely L3815/M, Itawa Ndola as a small holding. Other people, if any who were also offered the same land will be offered alternative plots by the defendant; (b) The said land shall be divided and rezoned into residential plots, which will be offered to members of the public by the plaintiff Copperbelt School of Agriculture; (c) Those who will be offered subdivided plots by the plaintiff shall pay statutory fees namely service charges in the sum of K13,000.00 to the defendant, Ndola City Council before the title -JS- deeds can be processed in their respective names. (d) Each party to bear its own costs." 2 .7 After rezoning Stand 12894, into residential plots as evidenced by the letter dated 25th January 2019, the School offered Stand 14501, to the 2 nd Respondent. The 2 nd Respondent was subsequently issued with a c ertificate of title , dated 1st February 2019. On 12th June 2019, by way of contract of sale, the 2 nd Respondent sold Stand 14501 to the 1st Respondent. 2.8 The Appellant 1n the meantime had continued . construction and on 1st January 2021, was issued with a certificate of title. 3.0 MATTER IN THE COURT BELOW 3.1 The 1st and 2 nd Respondents commenced an action against the Appellant in the court below. By way of an amended writ of summons dated 16th August 2021, they claimed the following reliefs: "(i) A declaration that Stand No 14501, Itawa, Ndola belongs to the 1st and 2 nd plaintiffs who hold title -J6- no. 1000001653, situated where the defendant is currently illegally and mistakenly building as Stand No. 14505, Itawa, Ndola; (ii) A declaration that the Ndola City Council offer of Stand No. 14505, Itawa Ndola to the defendant was cancelled by virtue of the consent Judgment, which ordered that those offered land belonging to Copperbelt School of Agriculture by the Ndola City Council in Itawa be offered alternative land; (iii) An Order that Stand No. 14501, Itawa, Ndola, whose title was issued in 2019 takes precedence over the defendants title issued later in 2021. (iv) Damages for trespassing; (v) Any re lief that the court deems fit." 3 .2 According to the attendant statement of claim, the Appellant in April 2021 , wa s found digging a foundation on the Res pondents ' land. Tha t upon conducting a search at Ministry of Lands, it wa s discover ed that t he Appellant -J7- had no title deeds to Stand 14505. That despite several warnings, the Appellant continued to develop the land. 3.3 It was averred that the matter was reported to the Council, which issued a stop order which was ignored by the Appellant. According to the Respondents, a verification done on Stand No. 14501 and 14505, showed that the Appellant's survey was wrongly done as Stand 14505 was placed on top of Stand 14501 . That upon realizing that he was developing on the wrong property, the Appellant rushed to the Ministry of Lands and obtained a certificate of title. 3.4 It was further averred that the Appellant was supposed to be offered alternative land elsewhere by the Council and should not have been where he is currently developing, as he is illegally and mistakenly developing Stand 14501 , which belongs to the Respondents. 3.5 The Appellant settled its defence on 27th May 2021, and averred that the Respondents own Stand 14501, whilst he owned Stand 14505. That he had letters of offer and building permits from the Council. 3.6 According to the Appellant, before he commenced -JS- developments, he paid for verification of boundaries to the Ministry of Lands, who verified that where he was building was Stand 14505, to which he had legal rights. That as such, the allegation that where he was building was Stand 14501 and not Stand 14505 was not true. 4.0 DECISION OF THE COURT BELOW 4 . 1 After considering the pleadings, the evidence and the submissions by the parties, the learned Judge was of the view that Stands 14501 and 14505, on the ground . occupied the same piece of land. That the finding was borne out of the verification report done at the instance of the Respondents in which coordinates were used to map out the location of the two Stands. 4 .2 The learned Judge then formulated the issue for determination as "whether the Respondents had adduced sufficient evidence to show that Stand 14501, belongs to them and that the Appellant has been unlawfully carrying out construction works on Stand 14501. 4 .3 The learned Judge was satisfied that the Respondents did -J9- adduce sufficient evidence to show that the School did lawfully acquire the piece of land, which was subsequently sold to them. The learned Judge was fortified in this finding by the fact that the Council conceded that the land they had been allocating in Itawa belonged to the School. That this was evidenced by the consent Judgment. 4.4 According to the learned Judge, the real issue 1n controversy was, which party had the right to the land occupied by Stands 14501 and 14505. The learned Judge opined that a cursory glance at the survey diagram reveals that the two Stands overlap. That the situation was aptly demonstrated by the sketch plan attached to the Surveyor's report, produced by the Respondents. 4. 5 The learned Judge noted that the Appellant had also produced a boundary verification survey report for Stand 14505. That however, she did not find the report to be particularly useful in resolving the dispute, as all it did was to confirm the location of Stand 14505 and did not ref er to Stand 14501. 4. 6 The learned Judge opined that in view of the finding that -Jl0- the Respondents and the Appellant had certificates of title relating to the same piece of land, she had to determine which party had a superior interest, taking into consideration Section 7 of The Lands and Deeds Registry Act. In terms of the dates of registration of the certificates of title, the learned Judge made a finding that the Respondent's certificate of title had priority over that of the Appellant. 4. 7 Further, the learned Judge was of the view that if the matter was to be resolved on the basis of equitable rights, then the principle that equitable interests rank in order of creation would apply. According to the learned Judge, the School had equitable interest in the land, as did the Appellant when he received his letter of offer. That however , the School's interest was earlier in time and the maxim "que prior est tempore portior est Jure " i.e he who is earlier is stronger in law applies. That it therefore followed that the Respondents' interest was earlier in time than the -Jll- Appellant, as the Respondents derived their interest from the School. 5.0 THE APPEAL 5.1 Disenchanted with the Judgment, the Appellant has appealed to this Court advancing the fallowing seven (7) grounds of appeal: (i) The court below erred in law and fact to order cancellation of certificate of title for plot 14505; (ii) The court erred in law and/act to hold that the coordinates for plots 14505 and 14501 overlapped; (iii) The court be low erred in law and /act when it held that the parties had their interest from Copperbelt School of Agriculture; (iv) The court below erred in law and fact when it held that Copperbelt School of Agriculture did not own any land in Itawa and does not have any merit; -J12- (v) The court below erred in law and fact for failing to take into account the fact that the land in dispute is sub B of farm number 1532 whose ownership the court did not address as stand number 13815/M Itawa or stand number 38154 Itawa are separate; (vi) The totality of the court's Judgment is that Sub B off arm number 1532 Itawa Ndola is land owned by Copperbelt School of Agriculture and that this is not based on any evidence; (vii) By the court holding that where plot 14505 is that where plot 14501 is situated, that plot 14501 sits between plot 14504 and 14506 which contradicts the holding that plot 14501 sits between 14500 and 14502. 6.0 ARGUMENTS IN SUPPORT OF THE APPEAL -J13- 6.1 The Appellant argued grounds one, five and six in tandem. The Appellant drew the attention of the court to the case of Smith Silwana v Attorney General & Another1 , where the Supreme Court held that: "While under Section 33 of the Lands and Deeds Registry Act, a certificate of title is conclusive evidence of ownership of property, under Section 34 of the Act, a certificate of title can be challenged and cancelled for fraud or reasons of impropriety in its acquisition." 6.2 It was the Appellant's contention that the pleadings did not reveal any allegation of fraud or procedural impropriety in the manner in which the certificate of title was issued to the Appellant. 6.3 It was further argued that the Respondents in the court below did not seek a relief of cancellation of the certificate of title. That it was therefore not in order for the court to award a relief not sought. According to the Appellant, the court below ought to have considered the genesis of both -J14- certificates of title in order to ascertain which one was rightly placed. 6 .4 It was submitted that the certificate of title which was cancelled rightly established that it derived from farm No. 1532, a property which initially belonged to Kafubu Dairy Farm, which was not disputed and that the land given to the School was along Mufulira Road. Reference was made to the survey diagram at pages 73-7 4 of the record of appeal dated 5 th March 2021, from the Ministry of Lands and submitted that, it shows that Stand 14505 was in the correct position and was distinct from Stand 14501. 6 .5 The Appellant then proceeded to argue the second and seventh grounds together. It was submitted that the court below erred in not considering the survey report from the Appellant, which clearly established that Stand 14505 did in fact exist. 6 . 6 The third and fourth grounds were also argued simultaneously. According to the Appellant, the court ought to have addressed its mind to the fact that L/38154/M was based in Chichele and not Itawa. It was -JlS- reiterated that the Respondent's certificate of title is based on a piece of land that was a subdivision of Farm No. 1523 and rightly belonging to the Appellant. 7.0 ARGUMENTS IN OPPOSITION 7.1 The Respondents filed their heads of argument on 9 th October 2023. They started by responding to the first ground and submitted that, amongst the relief sought was "any other relief that the court may deem.fit. "That this gave the court room to grant a relief that the court deemed necessary to give effect to the Judgment in the circumstances of the case. 7.2 Reference was made to the consent Judgment and submitted that the Council admitted that it had illegally offered Stand 14505, to the . Appellant and others. It was submitted that the off er to the Appellant was therefore illegal, as the Council had no property in the land or authority to offer the Appellant and others. That it followed therefore that the subsequent processing of title to the Appellant was irregular and improper. -J16- 7.4 It was further submitted that the court below was on firm ground to order cancellation of the certificate of title as the offer to the Appellant h ad already been cancelled by the terms of the consent Judgment. 7 .5 It was submitted that, there was impropriety in the manner the second survey for Stand 14505 was done and therefore the survey diagram which is part of the title, having been improperly done, the certificate of title was improperly procured. 7.6 The Respondent drew our attention to the case of Lusaka City Council & Another v Grace Mwamba & 4 Others2 , in which the Supreme Court ordered as follows: "For the avoidance of any doubt, if certificates of title or title deeds have been issued, we direct the appropriate authority to cancel them." 7.7 It was submitted that in the aforestated case, the Supreme Court deemed it fit to order the cancellation of title even though it was not specifically claimed, as a natural consequence to titles issued on the basis of cancelled offers. 7.8 In response to the third ground, the Respondents -J17- submitted in line with the background given in this matter on how the School acquired their land. Reference was again made to the consent Judgment and its effect and how the corrections in the numbering were made. According to the Respondents, the Appellant was supposed to be offered an alternative plot by the Council. That it was from the insistence of remaining at the same plot, that the trial court found as a fact that the two stands which were in the School's land derived their interest from the School, since it was the owner. That there was nothing wrong with the finding since it was based on the evidence on record and the consent Judgment. 7. 9 It was submitted that given the background to this case, to allege that the School had no land in Itawa is to stretch matters unnecessarily, as the site plan for the area and verification reports both confirm the existence of Stand 14501, sold by the School to the 2 n d Respondent. 7 . 10 As regards the fourth ground, it was submitted that as alluded to in the third ground, the court was justified in -J18- holding that "to suggest that, as the defendant did, the Copperbelt School of Agriculture did not own land in Itawa does not have merit." It was submitted that PW2, the owner of the School, clearly explained the sequence of events regarding the land in issue. That the court below rightly identified the issues for determination. That however the Appellant concentrated on the issue of ownership of land belonging to Kafubu Dairy Farm. 7.11 In response to the fifth ground, it was submitted that the court below was on firm ground when it found that the School owned land in ltawa namely L/38145/M, which was later corrected to Stand No. 12894. It was submitted that the issue was not about the land belonging to Kafubu Dairy Farm, which was not part of this case. 7.12 In addressing the sixth ground, it was submitted that the finding by the court was based on the evidence on record. That the court properly analyzed the evidence both documentary and oral and came to the only logical conclusion that indeed the School owned land in ltawa. -J19- That to suggest that there was no evidence was stretching matters beyond reason. 7 . 13 In response to the seventh ground, it was the Respondents' submission that there was evidence on record that the Appellant and the Respondents had a dispute, b ecause both parties were pointing to the same land as theirs. Both parties sought verification. That the Appellant's verification report confirmed that Stand 14505, was according to the coordinates. That the only omission was that the said verification did not address stand 14501. 7.14 It was submitted that the verification report by the Respondents carried out a verification of both stands and confirmed the position on the ground. It clearly showed that Stand 14500, was followed by Stand 14501 and that is the place where Stand 14505 was found to be wrongly sited. That the verification report shows how the diagrams for Stands 14501 and 14505 are sited. That it clearly shows that Stand 14505 is sited on top of Stand 14501, which is an encroachment. 8.0 HEARING -J20- 8.1 At the hearing of the appeal, both parties relied entirely on their respective heads of argument. 9.0 ANALYSIS AND DECISION OF THE COURT 9.1 We have carefully considered the Judgment being impugned, the grounds of appeal and the arguments by the parties. From the onset, we deliberately laid out the background to how the School found itself as owner of the land in issue, up to the time a portion of it, being Stand 14501 was sold to the 2 nd Respondent. We are of the view that the background given aptly established that the land in issue initially belonged to the School. 9 .2 Therefore, the allegation by the Appellant that it did not belong to the School or that it belonged to Kafubu Dairy Farm is misconceived. We also do not see how that aids the Appellant's case. In view of that, we will not take into consideration any issues related to who previously owned the property as that matter is settled. 9.3 We also note that apart from the first ground of appeal, the rest of the grounds are basically questioning findings of -J21 - fact by the learned Judge . We are guided by the case of Zambia Revenue Authority v Dorothy Mwanza & Others3 where the Supreme Court held that: " ... It is trite law that this court will not interfere with findings of fact unless it is satisfied that the finding was either perverse or made in the absence of any relevant evidence or misapprehension of the facts or that findings which on a proper view of the evidence no trial court acting correctly and reasonably can make." 9 .4 Reverting to the grounds of appeal, the first ground attacks the learned Judge's cancellation of the certificate of title. According to the Appellant, that relief was n ot pleaded and neither was any evidence laid by the Respondent alleging fraud or impropriety on the part of the Appellant in the manner it was procured. 9.5 Although impropriety is not defined under The Lands and Deeds Registry Act, 1 its definition in English dictionaries is quite wide and includes failure to observe standards of honesty or modesty and improper behaviour or character. -J22- It also extends to inappropriateness, unsuitableness, unseemliness, erroneousness or unsuitable acts. 9. 6 The evidence on record is that the off er by the Council to the Appellant was cancelled by virtue of the consent Judgment between the School and the Council. That being the case, the Appellant had no right to any land. In addition, the survey diagram in respect to Stand 14505 was wrongly issued as the diagram in respect to Stand 14505 was already in place. The learned Judge made a finding based on the evidence before her that Stand 14501 and 14505 occupied the same piece of land on the ground. The learned Judge went on to make a finding that Stand 14505 was wrongly sitting on top of Stand 14501 . 9.7 It is evident that the Appellant was aware from both the Respondents and the Council that there was a dispute over this piece of land, but however went on to procure the certificate of title, when the matter was actually already in court. That was an act of impropriety on the part of the Appellant. 9.8 Based on the offer having been cancelled and impropriety -J23- on the part of the Appellant, the learned Judge cannot be faulted in line with the Grace Mwamba case and Section 34 of The Lands and Deeds Registry Act1 case for directing cancellation of the certificate of title. 9. 9 Although cancellation of the certificate of title was not sought as a relief by the Respondents, the court had the inherentjurisdiction to issue consequential orders such as it did. Consequential Orders can be made by the court even when not pleaded in order to ensure justice and give effect to the Judgment of the court 9 . 10 We find no basis on which to fault the learned Judge on the cancellation of the Appellant's certificate of title. 9 .11 We shall consider the second and seventh grounds together as both grounds attacks the finding of fact that the coordinates for Stands 14505 and 14501 overlapped. This finding was not perverse as it was based on the surveyor's report appearing at page 135 of the record of appeal (the record); • 9 . 12 Under the said verification, the Surveyor was requested to -J24- find out: "(i) Whether what was presented on the survey d iagrams conformed with what was on t he ground; (ii) Whether the wall fence constructed by the owner of Stand 14505 was falling on 14501 . 9 . 13 The finding of the Surveyor was that: (i) The data presented on the survey diagram for Stand 14501 conforms with what was on t he ground as it shares the boundary w ith a surveyed property Stand 14500; (ii) The wall fence constructed by the owner of Stand 14505 was falling on Stand 14501 . Furthermore, the fieldwork revealed that Stand 14501 and 14505 were falling on the same p iece of land which is in contrast with the approved site plan. 9 . 14 The Surveyor con cluded that it was clear from the findings that the stru cture bein g constructed by the owner of Stand 14505 encroached u pon Stand 14501 . • 9.15 It was on the basis of the aforestated that the learned -J25- Judge in respect to the seventh ground made a finding of fact as follows: "Furthermore, I do agree with the submission by the Counsel for the plaintiffs that the location of Plot 14505 on the ground is awkward as it is between Plot 14500 and Plot 14502. I take judicial notice of the fact that Plot numbers follow a sequenced order. In my view if the usual sequencing were to be followed, the Plot that would occupy the land in issue would be Plot 14501 and not Plot 14505." 9 . 16 In view of the aforestated, we see no basis on which to fault the learned Judge on her findings of fact as they were supported by evidence and also are not perverse. 9.17 As regards grounds three, four, five and six, these issues are questioning whether the School ever owned the land in issue. As earlier alluded to, these grounds are misplaced and should not be in contention. As rightly formulated by • -J26- the court, the issue for determination before the court was "whether the plaintiffs had adduced sufficient evidence to show that Plot 14501 belongs to them and that the defendant has been unlawfully carrying out construction works on the said Plot. " 9. 18 That was the issue which was before the court and the learned Judge ably dealt with the issue. As earlier alluded to, these grounds do not by any means aid or assist the Appellant in his case. 10.0 CONCLUSION 10. 1 The appeal has no merit and is dismissed with costs to the of agreement. J. CHASHI COURT OF APPEAL JUDGE fl P . C. M. NGULUBE A. M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE