Mulenga v Mwale (Appeal No.118/2021) [2023] ZMCA 199 (18 August 2023)

IN THE COURT OF APPEA1J,OI -'a (cid:9) / APPEAL NO. 118/2021 HOLDEN AT LUSAKA )GIS1RJ/ (Civil Jurisdiction) 5OO67 GODFREY MULENGA APPELLANT AND MARVIN MWALE RESPONDENT CORAM: Kondolo, Makungu, Majula JJA On, 18th May, 2023 and 181h August, 2023 For the Appellant.' Mr. B. Musendema of Messrs HH Ndlovu & Co For the Respondent: No appearance JUDGMENT Makungu J. A delivered the judgment of the court. Cases referred to; 1. The Attorney General v Marcus Kampumba Achiume (1983) Z. R1 2. Anti-Corruption v Barnnet Development Corporation Limited (2008) Z. R 69 3. Raphael Ackim Namung'andu v Lusaka City Council (1978) Z. R 358 (cid:9) 4. Jonathan Van Blerk v The Attorney General and 5 others SCZ/ 8/03/2020 5. Moses Milambo, Col Joseph Keith Kamanga v Florence H. Mweemba Mweemba CAZ 9/2020 Works Referred to; 1. F. Mudenda (2007) Land Law in Zambia: Cases and Materials, Lusaka UNZA Press. 1.0 INTRODUCTION 1.1 (cid:9) This is an appeal against the judgment of S. K Newa J, of the High Court in which the appellant was declared not to be the rightful owner of the property known as house number 26, block 95 George Compound, Lusaka Province, Zambia and ordered to vacate the property within 3 months from the date of judgment. 2.0 BACKGROUND AND PLEADINGS WRIT 2.1 On 17th June, 2017 the plaintiff now appellant commenced an action by way of writ of summons and statement of claim seeking the following reliefs: J2 (cid:9) a. A declaration that he is the rightful owner of house number 26 block 95, George compound, Lusaka Province, Zambia. b. An order of injunction restraining the defendant whether by himself, his agents, his servants or whomsoever from demolishing the structures that were put up by the plaintiff, or in any way interfering with the plaintiff's activities until final determination of the matter. c. Damages for inconvenience d. Costs 3.0 STATEMENT OF CLAIM 3.1 In the statement of claim, the appellant claimed that he is the legal owner of house number 26 block 95 George Compound, Lusaka which he developed. That the respondent had been harassing him and claiming ownership of property when he has no valid or legal documents. That the respondent had been taking different people to the premises with a view to subdividing the same and selling a portion of it. 4.0 DEFENDANT'S COUNTER CLAIM 4.1 The respondent in its defence and counterclaim filed on 26th June, 2017 denied that the appellant is the legal J3 (cid:9) (cid:9) owner of the house in issue. He stated that he is the beneficial owner of the property known as F/ 1938/A Lusaka within whose boundaries the appellant purports to own the said house. The respondent averred that the appellant is a squatter and the purported title that he holds from the council was fraudulently and illegally obtained. 4.2 The respondent denied having harassed the appellant or taken people to the appellant's purported land with a view to selling it. He contends that he has a legitimate right to occupy the property by virtue of a certificate of title that was issued by the commissioner of lands to Chilenge Butchery Limited in 1966. 5.0 COUNTERCLAIM 5.1 The respondent in his counterclaim stated as follows: Sometime in July, 1996, the commissioner of lands issued a Certificate of Title to property number F/ 1938/A in favour of Chilenge Butchery Limited, a company owned by his late father Mr. Mathole Kayisa and now under the control of the administrators of the estate. That he is one of the administrators. Pursuant J4 to that Certificate of Title, the respondent is in occupation of property No. F/ 1938/A. 5.2 That on 18th October, 1978 the commissioner of lands purportedly acquired the property F/ 1938/A compulsorily. Nevertheless, there have been negotiations between the commissioner of lands and the respondent for restitution of the same. The respondent claimed that the land in question has not at any time been allocated to anyone. That he made enquiries at the local authority which revealed that the house number and occupancy licence purportedly issued by the Lusaka City Council to the appellant were forged. 5.3 That the appellant has no legal or equitable interest in the property. The respondent therefore counter claimed as follows; i. A declaration that the occupancy license relating to house no. 26 block 95 George Compound is null and void, on account of it being a forgery. ii. A declaration that the appellant has no interest in the property known as F/ 1938/A. J5 iii. An order that the appellant vacates F/ 1938/A and yields vacant possession to the respondent. iv. Costs and any other relief that the court may deem fit. 6.0 APPELLANT'S EVIDENCE ON RECORD 6.1 At trial, the appellant testified that he had stayed on the property since 1996 and that he had been paying ground rates. He applied for an occupancy license and was given one. He prayed that he be declared as the rightful owner of the house. 6.2 In cross examination, he stated that the land was given to him by Misako Company where he worked under Japan International Corporation Agency (JICA). The appellant denied awareness that the land he was claiming was for Chilenge Butchery which was incorporated by the respondent's late father. When referred to the Certificate of Title he conceded that it was in the names of Chilenge Butchery Limited. 6.3 The appellant further claimed that JICA gave him a letter of offer and that he was not aware that the land he was claiming J6 was a subdivision. That the council offered him the property and gave him the block number. 7.0 RESPONDENT'S EVIDENCE ON RECORD 7.1 The defence called three witnesses and their combined evidence was as follows; that sometime in 1966, the respondent's father Mr. Mathole Kayisa, acquired the land in issue and obtained a Certificate of Title in the names of a company called Chilenge Butchery Limited. The respondent is the administrator of his father's estate and to his knowledge apart from his father, no other person has ever been allocated the said land. 7.2 The respondent, further testified that he wrote a letter dated 11th February, 2016 to the Surveyor General requesting for verification of the boundary for subdivision A of farm 1938. He was thereafter given the quotation for the verification, which is at page 4 and he paid K12,500.00 for it. Thereafter Farm No. 1938/A was subdivided with numbers starting from 21 to 30. The contention was on number A/23 which was given to him and the Certificate of Title. R 7.3 That in 2015 the Ministry of Lands informed the respondent that subdivision A of farm 1938 (the land) had been compulsorily acquired on account of none payment of land rates. As the family was not aware of the compulsory acquisition, the respondent dialogued with the Ministry of Lands who informed him that the land had been re-planned and subdivided. The respondent wrote a letter dated 11th February, 2016 to the Surveyor General requesting for boundary verification of subdivision A of farm 1938 and he was given a quotation of K12,500.00. The respondent was offered subdivision no. 23 of subdivision A of farm 1938 and later obtained a Certificate of Title in his names for property no. F/1938/A. 7.4 The history of how the appellant came to stay on the land in issue was explained by DW2 and DW3 as follows; 7.5 That, in 1996 when there was an outbreak of Cholera in George Compound, JICA went there to assist the community. DW3 and the sub-contractor surveyed where they could erect water tanks for the community and the land belonging to the late Mr. Mathole, who died in 1996, was identified. At that time, the property was under the control of Mrs. Mathole and J8 her children. They approached Mrs. Mathole with a request to drill a borehole and build an office and a store room on the land and she agreed. 7.6 DW3 was employed as a watchwoman for Kanjema, a company subcontracted by JICA that came from Kabwe with workers, including the appellant. She stated that she found a house to rent for the workers and helped the appellant and his friend to get jobs as casual workers for the said company. 7.7 DW3 further testified that, after the project came to an end, the company asked Mrs. Mathole if they could demolish the buildings they had constructed on her property but she refused, stating that her children could use it. 7.8 According to DW3, the appellant was staying in a rented house with other workers who came from Kabwe. At the end of the project, the appellant and his friend Chikwanda remained there. 7.9 According to DW2, the appellant and his friend Chikwanda requested DW2's mother if they could stay in the store room and she allowed them. In 2001, DW2's mother died and the appellant continued staying in the store room. When the J9 appellant started extending the store room W2's brother asked him to stop as the property was not his. In 2017, the appellant instituted the court action. 7.10 When the respondent's family, learnt of the appellant's suit and became aware of his Occupancy License for stand No. 95/26, the family reported the matter to the police. After investigating the matter, the police informed the family that, the minutes of the council meeting showed that stand no. 95/26 did not exist in the council numbering system and that property no. 1938/A belonged to Marvin Mwala. It was the respondent's evidence that his family had been on the said land from 1968 without interference from anyone. 8.0 DECISION OF THE LOWER COURT 8.1 After considering the evidence on record, the learned trial Judge found that it was not in dispute that the appellant was allowed to stay in a structure that was built by some donors who constructed water tanks in George Compound, on the land that the respondent claims as his. 8.2 The Judge then posed, a question as to whether the appellant was entitled to the reliefs he was seeking. J10 8.3 On the question whether the appellant could be declared as the rightful owner of house no. 26/block 95, the judge found that the appellant applied for land on 23rd May, 2012 and was issued with an Occupancy Licence by the Lusaka City Council for house no. 26 block 95 George Compound a Statutory Improvement Area on 18th June, 2012. The Judge also noted the receipts for ground rates payments in the names of the appellant. 8.4 The Judge further found that the property for which the appellant has a land record is on the respondent's land. That a Certificate of Title was issued to Chilenge Butchery Limited on 1st July, 1966 for subdivision A of Farm 1938, Lusaka in extent of 29.920 hectares. At page 8 of the respondent's bundle of documents was an extract of the Lands Register, which showed that Farm 1938/A in extent of 12.1082 was compulsorily acquired on 181h October, 1978. At Page 1 of the respondent's bundle of documents was an invitation to treat dated 17th January, 2020 showing that the respondent was invited to buy the property F/1938/A/23 at K4,433.10. This amount was paid by the respondent who was issued with a receipt dated 21st February, 2020. A letter of offer was ill issued to the respondent on the same date and a Certificate of Title dated 27th July, 2020 issued to him for the land in extent 4/048 square metres. 8.5 On the question whether the appellant was an innocent purchaser for value of the land he was claiming for, the learned trial Judge found that the appellant was not an innocent purchaser for value because he applied for ownership of the property, despite having actual notice of the interest that the respondent's family had in it. 8.6 The Judge further found that the land in issue was part of the land that Chilenge Butchery Limited owned before part of it was compulsorily acquired by the government. That the appellant did not show that the council had created the property as a block, neither did he show that the council was the owner of the property with power to allocate it to him. 8.7 That there being a Certificate of Title for the land owned by the respondent's father and there being no evidence of fraud in the way he obtained it, the appellant could not legally acquire a land record from the council over the same. J12 8.8 As regards the allegation by the respondent in his counterclaim that the appellant's land record was forged, the Judge found that the particulars of forgery had not been pleaded. That the appellant's land record was not properly obtained and the appellant's plot number does not exist. Further, that there was no evidence that the council as a planning authority obtained numbering from the Commissioner of Lands for the property that it offered to the appellant and that the Council subsequently recommended the appellant to the commissioner of lands to be offered the property. 8.9 The trial Judge found that under the circumstances, the appellant could not be declared as the legal owner of house no. 26 block 95 George Compound. 8.10 The Judge further granted the respondent's counterclaim that he was interested in the property F/ 1938/A and ordered that the Occupancy Licence issued to the appellant to be cancelled as it was obtained fraudulently. The appellant was given 3 months from the date of judgment to vacate the property, failure to which a writ of possession would be issued. J13 8.11 It was further ordered that the appellant was at liberty to demolish the structures that he had built on the said land, failure to which the respondent would be at liberty to demolish the same at the expiration of the 3 months given to appellant to vacate the property. The lower court cited the authority of Raphael Ackim Namung'andu v Lusaka City Council, that squatters build at their own risk. 8.12 Costs of the action were accordingly granted to the respondent. 9.0 GROUNDS OF APPEAL 9.1 The appeal is based on two grounds of appeal framed as follows; 1. That the lower court erred in law and fact when it did not take into consideration that the appellant had been staying on the land in dispute for the past 21 years and has been paying ground rates to Lusaka City Council. 2. That the lower court erred In law and fact when it did not consider the appellant to be a bonafide purchaser for value. J14 10.0 APPELLANT'S ARGUMENTS 10.1 At the hearing of the appeal, the appellant's counsel Mr. Musendema relied on the written arguments filed by the appellant himself on 4th June, 2021 wherein the appellant had argued the two grounds of appeal together as follows: that the lower Court misdirected itself in holding that the respondent was a bonafide purchaser for value of the plot in issue when the evidence on record shows that the appellant was the owner of the property as he had even built a house on the said plot and was paying ground rates to the council. That the respondent obtained title to the property alter the appellant sued him and obtained an injunction restraining him from demolishing his house. He urged this court to reverse the lower court's findings of fact in accordance with the case of The Attorney General v Marcus Kampumba Achiume'. 10.2 He further submitted that the respondent had constructive notice of his interest in the land. He therefore implored us to allow the appeal and declare that he is the owner of the land or that he has a better claim to the land than the respondent. J15 11.0 RESPONDENT'S ARGUMENTS 11.1 The respondent relied on the heads of argument dated 9th July, 2021. To counter ground one, the respondent's counsel argued that the court below was on firm ground in holding that the respondent is interested in property F/ 1938/A because the land is subject of a Certificate of Title. That the property was owned by the respondent's father and there was no evidence to show that there was impropriety or fraud in the manner that it was acquired. Counsel referred us to Section 33 of the Lands and Deeds Registry Act in support of the submission that a Certificate of Title is conclusive evidence of ownership of land by a holder of a certificate of title. (cid:9) He also relied on the case of Anti-Corruption Commission v Barnnet Development Corporation Limited' where it was held that: "Under section 33 of the Lands and Deeds Registry Act, a certificate of title is conclusive evidence of ownership of land by a holder of a certificate of title. However, under section 34 of the same act, ac Certificate of Title can be challenged and cancelled J16 for fraud or reasons for Impropriety in its acquisition." 11.2 Counsel contended that as there is a Certificate of Title for the said land, the appellant is a mere squatter despite staying on the land for the past 21 years and paying ground rates. In support of this submission, he cited the case of Raphael Ackim Namung'andu v Lusaka City Council' where it was stated that; "Squatters build at their own risk and If the owners of the land withdraw their permission or license or if they decide to demolish a structure built in the absence of any permission or other lawful relationship, the squatter's losses, though very much regrettable, are not recoverable in a court of law." 11.3 In response to ground 2, counsel submitted that the lower court was on firm ground to hold that the appellant was not a bonafide purchaser for value. We were referred to Land Law in Zambia, by Fredrick Mudenda, where the learned author sets out the requirements that need to be fulfilled in order for J17 a party to rely on the doctrine of innocent purchaser, as follows: 1. A purchaser acting in good faith. 2. A purchaser acquiring interest in property by grant rather than operation of the law and should have given value for the property. 3. A purchaser must generally have obtained a legal interest in the property. 4. A purchaser must have had no notice of the equitable interest at the time they gave their consideration for the conveyance. 11.4 The said author writes that a purchaser is affected by notice of an equity in three cases namely; a. Actual notice; where equity is within his own knowledge; b. Constructive notice; where equity would have been made, and c. Imputed notice; where his agent as such in the course of the transaction has actual or constructive notice of the equity. 11.5 Counsel submitted that the appellant occupied the property with the respondent's mother's consent and later applied for ownership. Since he had actual notice of the respondent's family's interest in the property, he cannot be said to be an innocent purchaser for value. 11.6 In conclusion, counsel urged us to dismiss the appeal with costs to the respondent. 12.0 ORAL ARGUMENTS 12.1 At the hearing of the appeal, the appellant's learned counsel Mr. Musendema orally augmented the written submissions as follows; that the respondent's Certificate of Title was obtained in 2020 and it is a subdivision of the piece of land that was owned by his late father. That it is unclear whether the appellant's land falls exactly within the boundary of the respondent's land with a Certificate of Title. 12.2 Counsel further submitted that the lower court relied on the Certificate of Title obtained in 2020 when the matter commenced in 2017. The old Certificate of Title had been cancelled in 1978. From the record, there was no site visit. Further the respondent had pleaded fraud in obtaining the occupant's licence. A meeting was arranged with some Jig council officials and they determined that the appellant's piece of land was not part of the old title. 13.0 ANALYSIS AND DECISION OF THIS COURT 13.1 We have considered the evidence on record and the arguments made by both parties. We shall consider the two grounds of appeal separately. 13.2 On ground 1, the appellant contends that the lower court did not take into consideration that he had been staying on the land in issue for 21 years and paying ground rates to Lusaka City Council. 13.3 The undisputed facts on how the appellant came to occupy the property in issue are as follows; the appellant was employed as a casual worker for Kanjema Company. The said company was subcontracted by JICA to do some works in George Compound. The respondent's late father was a Driver of Chilenje Butchery Limited which had a Certificate of Title for Farm No. F/ 1938/A in its name. Kanjema Company identified the said land as suitable for sinking boreholes for the benefit of the community. At that time, the land was under the control of the respondent's mother who permitted J20 JICA to sink boreholes there and build a two roomed building. 13.4 After winding up their operations, Kanjema Company gave the respondent's mother the option of either demolishing the two roomed building or keeping it and she chose to keep it. 13.5 Thereafter, the appellant approached the respondent's mother and requested her to allow him to stay in the said two roomed building and she allowed him. 13.6 The evidence is clear that the respondent's mother was the legal occupant of the property and at her discretion, the appellant was allowed to stay in that building. There is no evidence of the terms and conditions on which the appellant was allowed to occupy the property. It is also clear that the appellant did not occupy that building by virtue of his employment as the company he was working for had wound up its operations in George Compound and left the premises. 13.7 At page 255 of the record of appeal, it is indicated that during cross examination, the appellant conceded that he did not buy the land. He claimed to have been given the house but could not substantiate his claim. His evidence was contrary J21 to the evidence on record, as the company could not have possibly given the appellant a building on someone else's land. 13.8 We take note that, the Certificate of Title dated 8th September, 1967 in the names of Chilenje Butchery appearing at page 57 of the Record of Appeal was for subdivision A of farm No. 1938 in extent of 29.920 acres. On 18th October, 1978, part of that land in extent 12.1082 Hectares was compulsorily acquired by the Government of the Republic Zambia (GRZ) as evidenced by the extract from the lands register appearing at page 142 of the record of Appeal. 13.9 This entails that only part of the land belonging to Chilenje Butchery Limited now compulsorily acquired. Under the circumstances, the respondent's family could not lay a claim to the 12.1082 hectares belonging to GRZ. 13.10 Further evidence on record shows that the appellant has been occupying the house on the said property since 1996. On 23rd May, 2012, he applied to the Lusaka City Council for ownership of the same. He was given an occupant's licence dated 18th June, 2012 by the Lusaka City Council for plot no. 26 block 95 in George Compound for which he J22 has been paying ground rates as evidenced by the receipts on pages 95 to 98 of the record of appeal. 13.11 Sometime in 2015, the respondent learnt that the said land had been compulsorily acquired. Upon negotiating with the Council or the Ministry of Lands, he was given an invitation to treat by the said ministry to purchase property No. F/1938/A/23 at K4,433.10. (See page 233 of the record of appeal). He proceeded to pay the said sum as shown by the receipt on page 235 of the record. He was given a letter of offer on 21st February, 2020 and later issued with a Certificate of Title dated 27th July, 2020 for the property in extent of 4048 square meters appearing on page 198 of the record of appeal. 13.12 A perusal of the minutes of the council meeting at page 193 of the record of appeal, reveals that the numbering in George Compound ended at block number 95/25. This meant that according to the official numbering system, block no. 95/26 claimed by the appellant did not exist in George Compound. The said block no.95/26 was further found by the council be on the other side of George Compound. The council J23 therefore found that the rightful owner of the said land was the respondent who holds a Certificate of Title to it. 13.13 The appellant cannot claim the said land even though he has occupied it for more than 21 years. What the appellant had was merely an occupancy licence and he did not possess beneficial ownership of the property. Moreover, the evidence on record shows that the appellant's occupancy licence was questionable. In addition, if the property which the appellant claims lay within the jurisdiction of the Commissioner of Lands, it would not have been subject of an occupancy licence as such licences are issued for properties in the statutory housing improved areas. 13.14 There is no boundary verification report by the surveyor to show that the said two roomed house occupied by the appellant is within the boundaries of the respondent's land. Nevertheless, it is clear from the evidence on record that the land that the appellant claims is within the portions of land which the respondent's family has occupied since 1966. In the case of Jonathan Van Blerk v The Attorney General and 5 others' the Supreme Court endorsed the principle J24 espoused in the case of Town Council of Awendo v Nelson Odur Onyango & 13 Others, that; "If, after land has been compulsorily acquired the public purpose or interest Just ifying the compulsory acquisition falls or ceases, the commissioner may offer the original owners or their successors in title, pre-emptive rights to re-acquire the land upon restitution to the acquiring authority of the full amount paid as compensation." 13.15 In the present case, the commissioner of Lands re-planned the land/farm after compulsorily acquiring part thereof. The respondent's family have pre-emptive rights to acquire it. 13.16 In light of the foregoing, we hold that, the lower court was on firm ground in ordering the cancellation of the appellant's occupancy licence as it was questionable. Further, the lower court was on firm ground when it held that the appellant was merely a squatter on the said property which he developed at his own risk. J25 13.17 It is inconsequential that the appellant spent money on extending the building and has lived there for so many years because it was not his in the first place. The case of Jonathan Van Blerk v The Attorney General and 5 others' where the Supreme Court stated that "it is irrelevant that a third party has spent considerable sums of money on a property which does not belong to it. One can no longer argue that possession is 9 tenths of the law and hope to maintain ownership on the basis of possession tf that property was not acquired." 13.18 The respondent is shielded by the provisions of Section 33 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia, which provides that a Certificate of Title is conclusive evidence of the ownership of land by the land holder. However, it may be cancelled for fraud or impropriety, as well as circumvention of procedure prescribed in the law. See the case of Anti-Corruption Commission v. Barnet Development Corporation Limited'. 13.19 In the absence of fraud or impropriety, as well as circumvention of procedure prescribed in the law, the J26 property belongs to the respondent and he has authority to evict any squatter from there. 13.20 We are further fortified by the holding in the case of Raphael Ackim Namung'andu v Lusaka City Council supra. 13,21 We therefore find no merit in ground 1. 13.22 Coming to ground 2, on the question whether the appellant was an innocent purchaser for value without notice. The facts are clear that the appellant did not purchase the land from the respondent's mother or from GRZ nor was it given to him by the Kajema Company. He had actual notice of the respondent's family's interest in the land as it was the respondent's mother who permitted him to occupy the property. In the case of Moses Milambo, Col Joseph Keith Kamanga v Florence H. Mweemba Mweeniba5, we stated that; "A bonafide purchaser for value without notice means a good faith purchaser who buys for value without notice of any other's claim or equitable interest against property." J27 a 4 I 13.23 The appellant's case does not fit into the above description of a bonafide purchaser for value without notice. 13.24 For the foregoing reasons; the lower court was on firm ground to order the appellant to vacate the property within 3 months, failure to which a writ of possession shall be issued. We therefore find no merit in ground 2 as well. 14.0 CONCLUSION 14.1 In conclusion, we find-no merit in both grounds of appeal as the appellant had failed to prove his case in the lower court. Further, the respondent legally acquired property No. F/ 1938/A/23 from GRZ at the price of K4, 433.10 and holds Certificate of Title No. 79629 issued on 27th July, 2020. The appellant has no interest in the respondent's property. 14.2 Accordingly, the appeal is dismissed on its entirety with costs to the respondent which may be taxed in default of agreement between the parties. M. M. KONDOLO, SC COURT OF APPEAL JUDGE GU (cid:9) COURT OF APPEAL JUDGE (cid:9) B. M.thAJULA COURT OF APPEAL JUDGE J28