Griver Sikasote v Attorney General (2018/HPA/0021) [2020] ZMHC 434 (21 September 2020)

IN THE HIGH COURT FOR ZAMBIA 2018/HPA/0021 IN THE MATTER OF: AN APPEAL FROM THE DECISION OF THE CHIEF REGISTRAR OF LANDS MADE ON THE 6TH OF JUNE IN THE MATTER OF: SECTION 87 AND 89 OF THE LANDS AND DEED REGISTRY ACT, CHAPTER 185 OF THE LAWS OF ZAMBIA GRIVER SIKASOTE APPELLANT AND ATTORNEY GENERAL RESPONDENT BEFORE THE HONOURABLE LADY JUSTICE P. K. YANGAILO, IN OPEN COURT, ON 218 T SEPTEMBER, 2020. For the Appellant: Mr. E. K Mwitwa and Mr. P. Shambulo - For the Respondent: Mr. M. Kapalu - State Advocate, Attorney Messrs. Mwenya and Mwitwa Advocates General's Chambers JUDGMENT CASES REFERRED TO: Jl I pd g t' 1. Corpus Legal Practitioners v Mwanadani Holdings Limited (2014) Z. R. Vol 3 at 258; 2. Robert Chaswe Musengule v The Attorney General (2009) Z. R . 359; 3. Chali v Ngandu -Appeal No. 84/2014; 4. Kureba v Goma and Attorney (1995) Z. R. 44; 5. Vodacom u Communication Authority - Appeal No. 98 of 2008; 6. Attorney General u The Law Association of Zambia (2008) Z. R. 21 Vol. 1 (S. C); 7. New Plast Industries u Commissioner of Lands and Another (SCZ ju.dgment No. 8 of 2001) (2001) ZMSC 19 (9 May 2001); 8. Bob Shilling Zinka v The Attorney General (1991) S. C; 9. Afzal T.fllah u State of U. P - (4) (Paragraph 14 at page 268); 10. Zambia National Holdings Limited and United National Independence Party u The Attorney General (1993-1994) Z. R. 115; and 11. Anti-Corruption Commission u Barnett Development Corporation Limited - SCZ Judgment No. 5 of 2008. LEGISLATION REFERRED TO: 1. The Lands Act, Chapter 184, Volume 12 of the Laws of Zambia; 2 . The Lands and Deeds Registry Act, Chapter 185, Volume 12 of the Laws of Zambia; 3. The Limitation of Actions A ct (1939); 4 . The Lands Tribunal Act No. 3 9 of 2010; 5 . The Constitution of Zambia, Chapter 1, Volume 1 of the Laws of Zambia; 6. The Fundamental Rights and Freedoms Statutory Instrument No. 156 of 1969; and 7 . The Lands Acquis ition Act, Chapter 189, Volume 12 of the Laws of Zambia. INTRODUCTION 1.1 This is an appeal against the decision of the Chief Registrar of Lands to cancel the Appellant's Certificate of Title Number 80619 relating to Farm No. 9653, situated in the Northern Province of Zambia ("Subject Property"), on the premise that the land to which it relates was wrongly allocated to the Appellant against the interests of the people settled on it. BACKGROUND 2.1 The facts constituting the back ground of this appeal are that the Appellant acquired the Subject Property, J2 I Page ~ 1n the year 1999 under a direct lease from the Republican President. The Commissioner of Lands on behalf of the President accordingly issued a 14 year lease on 29th April, 1999, under Certificate of Title Number L3014, relating to the Subject Property. 2.2 Upon expiration of the 14 year lease, the Appellant applied for a 99 year lease over the Subject Property and when doing so proceeded to obtain the necessary consent from Senior Chief Tafuna, the area chief and the approval of the Local Authority in Mpulungu District, where the property is situated. Upon scrutinising the application made by the Appellant, the Commissioner of Lands issued a 99 year lease under Certificate of Title Number 80619, on the 14th of November, 2008. 2 .3 In a letter dated the 24th of May, 2018, the Respondent through the office of the Commissioner of Lands and Chief Registrar notified the Appellant of the intention to cancel the said Certificate of Title on grounds that it was issued in error as the land is an island and had people settled there since 1977. Through a letter dated 4 th June, 2018, the Appellant objected to the intended cancellation of the Certificate of Title. The Chief Registrar of Lands and Deeds proceeded to cancel the said Certificate of Title and informed the Appellant through a letter dated 12th June, 2018, that the cancellation was premised on Section 3 (4) (c) of The Lands Act1. However, the entry in the lands J3 I Page register indicated that the cancellation of the Certificate of Title was made pursuant to the provisions of Section 11 (1) of The Lands and Deeds Registry Act2. 2 .4 It is the decision of the Chief Registrar to cancel the said Certificate of Title that is the subject of this appeal. PLEADINGS 3.1 The Appellant filed a Notice of Appeal into Court on the 20th of June, 2018 and advanced the following grounds of appeal: 1. The Chief Registrar erred in law and in fact when she decided to cancel the certificate of title when in fact the Appellant had enjoyed his constitutional and proprietary rights over the land over 19 (nineteen) years without any interference or complaints from any person or authority; 2. The Chief Registrar erred in law and in fact when she decided to cancel the Certificate of Title when in fact the Appellant had obtained consent from Senior Chief Tafuna of the Lungu Tribe of Mpulungu District in the Northern Province of Zambia prior to acquiring the land in issue; 3. The Chief Registrar erred in law and in fact when she decided to cancel the Certificate of Title based on Section 3 (4) (c} of The Lands Actl and J4 I Page Section 11 (1) of The Lands and Deeds Registry Act2 . 4. The Chief Registrar erred in law and in fact when she decided to cancel the Certificate of Title based on a memo from the Commissioner of Lands; and 5. The Chief Registrar of Lands erred in law and in fact when she decided to cancel the Certificate of Title without any objection or complaint lodged to the Ministry of Lands against the Appellant's continued ownership of the land which was statute barred under The Limitations Act of 19393. SUBMISSIONS 4 .1 Learned Counsel for the Appellant, in his submissions, elected to argue the above grounds of appeal together as they were interrelated. He drew my attention to Section 11 (1) of The Lands and Deeds Registry Act-2 and contended that the said provision only provided for correction of an error or omission or entry in the register by the Registrar of Lands and Deeds. It was his further contention that nothing in the cited section provides or gives the Registrar the mandate to cancel a certificate of title. It was submitted that the power to cancel certificates of title is the preserve of this Court as was stated in Section 11 (2) of The Lands and Deeds Registry Act-2. 4.2 The case of Corpus Legal Practitioners v Mwanadani Holdings Limited1 was cited in which JS I P age the Supreme Court in its interpretation of Section 11 (1) of The Lands and Deeds Registry Act2 stated as follows: - "In our view, Section 11 of the Lands and Deeds Registry Act is concerned with the process of correcting errors and omissions to entries made in the lands register by the Registrar of Lands and Deeds. It does not empower him to determine disputes which have the effect of determining the rights of the parties to any land or to cancel a Certificate of Title duly issued to the registered proprietor of the land to which it relates." 4.3 Additionally, the case of Robert Chaswe Musengule v The Attorney GeneraP. was cited, where the High Court pronounced itself on the effect of Section 11 (1) of The Lands and Deeds Registry Act2 . Based on the foregoing cases, it was submitted that in casu, the Registrar of Lands illegally clothed herself with the powers of the High Court and unlawfully cancelled the Certificate of Title to the property by drawing her authority from the a dvice of the Commissioner of Lands. It wa s further submitted that the Commissioner of Lands had no power t o give directives to the Chief Registrar to cancel Certificates of Title that h a d b een issued . 4.4 Counsel further submitted that in this case , nothing on the record shows how the claim that the Commissioner was under any mistaken belief tha t JG I Page iR · ~ -.!' there were people living on the property since 1977 when the process of conversion of rights from customary tenure to statutory tenure in Section 8 (1) (2) and (3) of The Lands Act1 ensures that all such material facts are uncovered and consent obtained from the Chiefs as well as local authorities. 4.5 Counsel cited the case of Chali v Ng'andu3 , wherein the procedure for effecting conversion of tenure and its legal effect was explained. It was submitted that the Appellant's ownership of the property in issue cannot be faulted because the evidence on record shows that he obtained the consent of the area chief and the local authority before applying for the land. It was further submitted that the allocation to the Appellant by the Commissioner of Lands of the property which he alleged earlier settlers are alleged to b e living, does not amount to a mistake when the Commissioner had always lmown of the possibility of that. 4.6 It was the Counsel's submission that the Commissioner did not make any mistake because the Appellant followed all the procedures required by the law in obtaining title and that no facts were misrepresented to necessitate him having a mistaken belief that no one at all occupied the property. Accordingly, the Appellant deserved the protection of this Court. J7 I P age 4.7 Counsel submitted that statutory law and decided cases in the Supreme Court and the High Court underpin the principle that the Chief Registrar cannot cancel a duly issued Certificate of Title, but can only rectify an entry made erroneously in the Register. Counsel cited the case of Kureba v Ngoma and The Attorney General4 and in distinguishing it from the case 1n casu, he submitted that in that case , the affected occupiers of the farm which was wholly erroneously alienated to the Appellant lodged a complaint against the issuance of the Certificate of Title, but that in casu, there had never been a single complaint from any one of the alleged earlier occupants of the land in issue in almost two (2) decades from the time the Appellant acquired the property. 4 .8 It was further submitted that the Respondent did not offer the Appellant any alternative land or compensation for arbitrarily taking away his property. It was Counsel's submission that the Chief Registrar acted ultra vires when she cancelled the Certificate of Title to the property over which the Appellant was a duly registered proprietor. 4.9 Furthermore, it was Counsel's contention that as the Appellant had followed the required procedures in Sections 8 and 3 (4) (c) of The Lands Actl, there was created a legitimate expectation that his interests in the property would be safe guarded and not abdicated JS I Pag e by the office of the Registrar of Lands. My attention was directed to the case of Vodacom v Communication Authority, 1n support of the submission that the decision of the Chief Registrar to cancel the Appellant's Certificate of Title based on an illegal and unsubstantiated request from the Commissioner of Lands and based on the wrong provisions of the law, was not only illegal but also an abuse of power, unconstitutional and undermined the authority of this Court's adjudicatory supremacy over matters of cancellation of certificates of title. Therefore, it was submitted that the Chief Registrar's decision in question was null and void. 4.10 Finally, it was submitted that the Respondent had not adduced any evidence on the record to suggest that in fact the Commissioner of Lands issued any advice to the effect that the said Certificate of Title be cancelled. Therefore, the decision was not predicated upon any verifiable reason and was in fact effected contrary to the provisions of The Lands and Deeds Registry Act2 . 4.11 Counsel prayed that based on the foregoing authorities, the Court should uphold the appeal in its entirety and direct the Respondent to reinstate the Appellant's Certificate of Title in relation to the property. 4.12 The Respondent filed its submissions on the 24th of December, 2018, wherein it cited Section 87 and Jg I Page Section 89 of The Lands and Deeds Registry Act:2 on which the commencement of this appeal 1s premised. It was contended that the import of Section 87 of The Lands and Deeds Registry Act:2 was that if a party was not satisfied with a decision taken by the Registrar in respect of any application, claim, matter or thing under The Lands and Deeds Registry Act:2, he or she may appeal to the Court. Learned Counsel submitted that for a party to bring an action under Section 87, the same must emanate from a decision of the Registrar in respect of any application, claim, matter or thing under The Lands and Deeds Act2 and not any other source. 4.13 It was contended that the originating process in this matter refers to a decision of the Acting Chief Registrar. It was further contended that to warrant a party to bring an action under Section 87 of The Lands and Deeds Act2 , it should be a decision of the Registrar in respect of any application, claim, matter or thing under the said Act and not any other source. 4.14 Section 15 (1) of The Lands Act1 was cited which provides as follows: - "Any person aggrieved with a direction or decision of a person in authority may apply to the Lands Tribunal for determination." 4.15 Based on the foregoing provision, it was contended that even though reference to Section 11 (1) of The Lands and Deeds Registry Act:2 may exist on the register, JlO I P age the cancellation of the Appellant's title was done and premised on Section 3 (4) (c) of The Lands Act1 and that it follows that the Appellant being dissatisfied with the decision of the Registrar should have sought recourse to the Lands Tribunal and not the High Court. Section 8 and Section 4 of The Lands Tri.bunal Act4 were cited, which outline the jurisdiction of the Land's Tribunal. 4.16 In response to ground one of the Appeal, Counsel for the Respondent submitted that further to the above contention, the Appellant was before this Court using the wrong mode of commencement of action. It was Counsel's contention that where a party alleges infringement of his constitutional rights, the correct mode of commencement of action is by way of petitioning the High Court. It was further contended that Article 28, Clause 1 of The Constitutions provides how a person who alleges that any provision of the Bill of Rights have been contravened may proceed. The holding in the case of Attorney General v The Law Association of Zambia6 was cited in support of the foregoing submission. 4 . 17 Counsel also submitted that this appeal not only touches on the Constitution but that the Appellant had strongly alleged an infringement of his constitutional rights as contained in Artie le 16 of The Constitutions and that therefore, it followed that this Court had no jurisdiction to entertain this appeal and should Jll I Pa ge accordingly dismiss it. The case of New Plast Industries v Commissioner of Lands and Another7 was cited in support of the above submission. 4.18 In response to Ground two and three, Counsel submitted that while the law on cancellation of certificates of title is clear that it cannot be undone, it is emphasised that the Chief Registrar proceeded to cancel the Appellant's Certificate of Title based on Section 3 (4) (c) of The Lands Act 1 as per the letter dated 12th June, 2018, which officially informed the Appellant's Counsel the law pursuant to which the cancellation had been done and as such, Section 11 (l) of The Lands and Deeds Registry Act2 was merely erroneously referred to. The holding in the case of Bob Shilling Zinka v The Attorney Genera'l8 and the case of Afzal Ullah v State9 were cited in support of the submission that although Section 11 (1) of The Lands and Deeds Registry Act2 appears to have been the law pursuant to which the title was cancelled, the Commissioner of Lands exercising powers through the Chief Registrar still had the power to rectify the register, as was done. It was further contended that the Commissioner of Lands alienates land on behalf of the President and therefore, he has a duty to ensure that all public interests are considered. 4.19 It was further contended that obtaining consent from the Senior Chief of the Lungu tribe of Mpulungu District is only one requirement in the leasehold title J12 I P age acquisition process and that the notion that the Commissioner of Lands can only cancel the Appellant's Certificate of Title where there is a recorded complaint from members of the area, is incorrect. My attention was directed to the provisions of Section 3 (4) of The Lands Act1 and it was submitted that the Commissioner of Lands is vested with the powers to refuse to give land under customary tenure if the pre requisites set out in Section 3 (4) of The Lands Act1 have not been met, whether the Appellant has obtained consent from the Chief or not. 4.20 Furthermore, it was contended that the interest of the people living in the particular area must be taken into consideration whether the same has been voiced out or not. The Court was invited to take Judicial Notice of the fact that the land in question is an island and that the Appellant who is a private person, if allowed to own this land, can assume authority to displace the indigenous people who had settled there before the Appellant obtained the 14 year lease. It was also contended that the office of the Commissioner of Lands is mandated to ensure public interest is considered at all times during the alienation of land and that the Commissioner of Lands would be faulted if any detrimental step is taken by the Appellant on that piece of land. 4.21 Counsel submitted that there was an error and mistake which was done, as the indigenous people on J13 I P age the island were not considered before the Appellant was issued the Certificate of Title and that therefore, the said Certificate of Title cannot stand. It was further submitted that had the presence of the settlers been known to the office of the Commissioner of Lands, the Certificate of Title would not have been issued. It was also contended that by the Appellant arguing that the Commissioner of Lands always knew the possibility of earlier settlers being found to be living on the land, he was admitting that there were indigenous people living on the subject land. 4 .22 In response to ground four and five, Counsel contended that these were misplaced as the memo from the Commissioner of Lands was internal communication of the Respondent conveying instructions to the office of the Chief Registrar and was not the basis upon which the decision to cancel the Certificate of Title can be appealed against. Counsel reiterated that there need not be a complaint against the decision of the Commissioner of Lands through the Chief Registrar and therefore, the argument on limitation was misplaced. 4 .23 Finally, it was Counsel's submission that this Court focuses on considering the public interest over the interest of one private citizen. Counsel argues that the indigenous people on the island were living at the mercy of the Appellant, which should not be the case either on customary or state land. He submitted that J14 I P age the Appellant could easily be compensated for any costs he may have incurred or better still be given alternative land. In totality, it was emphasised that this Honourable Court had no jurisdiction to even entertain this matter. ISSUES FOR DETERMINATION 5.1 An analysis of the evidence adduced reveals that the following issues are not in dispute: - 1. The Appellant acquired the Subject Property from the President under a direct 14 year lease, issued on 29th April, 1999; 2 . Upon expiration of the 14 year lease, the Appellant was issued with a 99 year lease to the Subject Property on 14th November, 2008, as shown by Certificate of Title Number 80619, relating to the Subject Property; 3. By letter dated the 24th of May, 2018, the Respondent through the office of the Commissioner of Lands and Chief Registrar notified the Appellant of the intention to cancel the said Certificate of Title on grounds that it was issued in error as the land had people already settled there since 1977; 4. The Chief Registrar of Lands and Deeds proceeded to cancel the said Certificate of Title and informed the Appellant through a letter dated 12th June, 2018. JlS I Pag e ,· 5.2 Having identified the undisputed issues, what emerges as the main issue for determination is whether or not the Chief Registrar of Lands and Deeds had the legal authority to cancel the said Certificate of Title in the manner that she did. THELAW 6.1 This appeal is premised on Sections 87 and 89 of The Lands and Deeds Act2, which provides as follows: - "87. If the Registrar refuses to perform any act or duty which he is required or empowered by this Act to perform, or if a Registered Proprietor or other interested person is dissatisfied with the direction or decision of the Registrar in respect of any application, claim, matter or thing under this Act, the person deeming himself aggrieved may appeal to the Court. 89. In the conduct of appeals from the Registrar to the Court, the same rules shall apply as are in force or exist for the time being in respect of ordinary appeals to the Court from a Subordinate Court." (Court's emphas is) 6 .2 Section 11 (1) of The Lands and Deeds Registry Act2, the provision on which the Assistant Chief Regis trar proceeded to cancel the Appellant's Certificate of Title provides as follows : - "Where any person alleges that any error or omission has been made in a Register or that any entry or omission therein has been made or procured by fraud or mistake, the Registrar shall, if he shall consider J16 I P a g e such allegation satisfactorily proved, correct such error, omission or entry as aforesaid." ANALYSIS AND FINDINGS 7 . 1 Before I proceed to determine this appeal, I will begin by determining whether this Court has jurisdiction to entertain this appeal. It has been contended by the Respondent in its submissions, that though the entry on the register relating to cancellation made reference to Section 11 (1) of The Lands and Deeds Registry Act2, the cancellation was premised on Section 3 (4) (c} of The Lands Act1 and that therefore, the Appellant being dissatisfied with the decision of the Registrar should have sought recourse to the Lands Tribunal and not the High Court. 7 .2 I have analysed the documentary evidence on record and in particular, the letter of the 12th of June, 2018, wherein the Acting Chief Registrar informed the Appellant of the cancellation of his Certificate of Title relating to the Subject Property. The said letter states that the reason for the cancellation was the issuance of the said Certificate of Title to the Appellant without taking into account the interest of the already settled occupants as required by Section 3 (4) (c} of The Lands Act1. The aforesaid section provides as follows: "Notwithstanding subsection (3), the President shall not alienate any land situated in a district or an area where land is held under customary tenure J17 I P age (c) without consulting any other person or body whose interest might be affected by the grant; .•• " (Court's emphasis) 7.3 I have also analysed the Land Register that has been exhibited in the record of Appeal at page 60 and in particular the entry on the Lands Register dated the 6 th of June, 2018, which indicates that the cancellation of the Appellant's Certificate of Title was made pursuant to Section 11 (1) of The Lands and Deeds Registry Act2 as it was issued in error, as per memo from the Commissioner of Lands dated 31 st January, 2018. Section 11 (1) of The Lands and Deeds Registry Act2 provides as follows: - "Where any person alleges that any error or omission has been made in a Register or that any entry or omission therein has been made or procured by fraud or mistake, the Registrar shall, if he shall consider such allegation satisfactorily proved, correct such error, omission or entry as aforesaid." (Court's emphasis) 7. 4 Having analysed the facts and the fore going provisions of the law, I find that the provisions of Section 3 (4) (c) of The Lands Act1 does not empower the Chief Registrar to make a decision relating to an entry on the register, but instead provides for one of the requirements to be considered by the Commissioner of Lands before land is alienated to an individual. The letter shown at page 9 of the Record of Appeal, dated 12th June, 2018, from the Acting Chief Registrar, J18 I P a ge informed the Appellant of the cancellation of the Certificate of Title and referred to Section 3 (4) (c) of The Lands Acti, as the legal provision that creates the requirement of taking into account the interests of the already settled occupants of the land before it is alienated. Consequently, I do not agree with the Respondent's contention that it was this provision of the law that formed the legal basis upon which the Chief Registrar proceeded to cancel the Appellant's Certificate of Title. 7.5 Section 11 (1) of The Lands and Deeds Registry Act2, is the provision which is reflected on the Lands Register as the basis on which the Appellant's Certificate of Title was cancelled and therefore, I find that this is the provision which the Acting Chief Registrar relied on in cancelling the Appellant's Certificate of Title and not Section 3 (4) (c) of The Lands Act1 as contended by the Respondent. 7 .6 As earlier stated, this appeal is premised on Sections 87 and 89 of The Lands and Deeds Act2 . Based on the foregoing provisions of the law reproduced in paragraph 6.1 above and my finding that the decision of the Chief Registrar was premised on Section 11 of The Lands and Deeds Registry Act2, I find that the Appellant's decision to Appeal to this Court was well founded as The Lands and Deeds Act2 makes provision for appeals by a registered proprietor against the decisions of the Registrar to this Court. In any J19 I Page ... case, Article 134 of The Constitution of Zambia (Amendment} Act5 vests the High Court with unlimited jurisdiction in civil matters, including those relating to land. It provides as follows:- "The High Court has, subject to Article 128- a) Unlimited and original jurisdiction in civil and criminal matters; b) Appellate and supervisory jurisdiction, as prescribed; and c) Jurisdiction to review decisions, as prescribed." 7. 7 The view I hold is fortified by the case of Zambia National Holdings Limited and United National Independence Party v The Attorney General10 . In considering the unlimited jurisdiction of the High Court, the Supreme Court held as follows: - "As a general rule, no cause is beyond the competence of and authority of the High Court; no restriction applies as to the types of cause and other matters as would apply to lesser Courts. However, the High Court is not exempt from adjudicating in accordance with the law, including complying with procedural requirements, as well as substantive limitations, such as those one finds in mandatory sentences or other specifications of available penalties or in civil matters, the types of choice of relief or remedy available to litigants, under the various laws or causes of action." 7 .8 I recognise that the unlimited jurisdiction of the High Court is to be exercised within the confines of the law, J20 I Pag e .. but I am unable to detect any restrictions on this Court in matters of ownership of land. Section 4 of The Lands Tribunal Act4, which outlines the jurisdiction of the Lands Tribunal, did not oust or limit the High Court's Jurisdiction in land matters because it expressly states that the provision is subject to the Constitution. Based on the foregoing, I find that this Court has jurisdiction to determine this appeal. 7. 9 Having determined that this Court has jurisdiction to determine this appeal, I will now proceed to consider the Respondent's contention that the Appellant has used the wrong mode of commencement of action as he is alleging an infringement of his constitutional rights to property, which requires the matter to be commenced by Petition. 7.10 I agree with the Respondent only to the extent that when a party alleges infringement of his fundamental rights and freedoms, the correct mode of commencement of an action is by way of petitioning the High Court as per Rule 2 of The Constitution of Zambia5 and The Fundamental Rights and Freedoms6 . However, on my analysis of the grounds of appeal as they appear in the Notice of Appeal, filed herein, I find that the Appellant's main contention is the Registrar's decision to cancel his Certificate of Title and that the enforcement of his constitutional right to property is merely incidental to this main contention. In the case of Corpus Legal Practitioners v J21 I Pa ge Mwanandani Holdings Limited1 , cited by the Appellant, the Supreme Court stated as follows regarding correct mode of commencing proceedings: - " .•. From the above, it is clear that the correct mode of commencing proceedings, seeking an Order for the removal of a caveat, is by Originating Summons. However, we must hasten to mention here that the relief sought by the Appellant, for the removal of a caveat is not the only claim which the respondent is seeking in the Court below. In our view, the position of the law, as stated in the Rural Development Corporation Limited case envisages a situation and is only applicable where the sole claim is an Order for the removal of a caveat. We take the further view that, looking at the circumstances of the case, to insist that the claim for the removal of the caveat must be brought in a separate action, commenced by way of Originating Summons, would amount to asking that the different claims in this case, although involving the same parties and arising from the same set of facts, be severed and brought in separate actions. In effect this would amount to multiplicity of actions a practice which we have always frowned upon. For the reasons we have given, we find no basis to fault the decision by the Judge in the Court below to allow the amendment of these proceedings, which were commenced by way of writ of summons to include the relief for the removal of a caveat." 7 .11 Based on the foregoing authority, dismissing this appeal and directing that a separate action for the J22 I Page .. enforcement of the Appellant's fundamental rights to property be commenced by Petition to this Court and that another action be commenced to address only the decision of the Registrar, which is the main contention, would result in multiplicity of actions, which is always frowned upon by our Courts. Therefore, I find that as the main issue in this appeal is the decision of the Registrar to cancel the Appellant's Certificate of Title, this appeal was commenced correctly pursuant to Sections 87 and 89 of The Lands and Deeds Registry Act'2 and that this Court has jurisdiction to determine it. 7 .12 Having determined that this appeal is rightly before this Court, I will now proceed to consider the Appellant's grounds of appeal. I have elected to address grounds 1 to 4 of the Appeal together as they are inter-related. 7.13 As earlier alluded to, the main contention in this appeal is whether the Acting Chief Registrar had legal authority to cancel the Appellant's Certificate of Title in the manner that she did. According to the letter dated 12th June, 2018, addressed to the Appellant, the Acting Chief Registrar indicated that based on a Memo from the Commissioner of Lands, the land allocated to the Appellant was allocated to him in error as interests of the indigenous occupants, who settled on the land since 1977, were not taken into consideration. Based on this letter and with reference to Section 11 of The J23 I P age .. • Lands and Deeds Registry Act'2 as indicated on the Lands Register, the Acting Chief Registrar proceeded to cancel the Appellant's Certificate of Title. 7 .14 The import of Section 11 of The Lands and Deeds Registry Act2 reproduced above in paragraph 6 .2, the provision on which the Assistant Chief Registrar proceeded to cancel the Appellant's Certificate of Title, is what was aptly explained by the Supreme Court in the case cited by the Appellant of Corpus Legal Practitioners v Mwanandani Holdings Limited1 , as follows : - "In our view, Section 11 of the Lands and Deeds Registry Act is concerned with the process of correcting errors and omissions to entries made in the lands register by the Registrar of Lands and Deeds. It does not empower him to determine disputes which have the effect of determining the rights of the parties to any land or to cancel a Certificate of Title duly issued to the registered proprietor." (Court 's emphasis) 7.15 Based on the foregoing authorities, Section 11 of The Lands and Deeds Registry Act'2 does not empower the Registrar to cancel certificates of title, as that is the preserve of this Court after it considers relevant evidence. The aforesaid section limits the authority of the Registrar to rectifications of errors or omissions on the Land Register after consideration of evidence following a complaint by any person. Therefore, it is my finding that the Registrar's decision to cancel the J24 I P age " Appellant's Certificate of Title was ultra vires and 1s therefore null and void. 7.16 The next issue of consideration and of relevance to the determination of the issues raised in this case is whether on the evidence before this Court, an error or an omission was made by the Commissioner of Lands in the allocation of the subject land to the Appellant that would warrant this Court to order a cancellation of the Appellant's Certificate of Title. According to the Respondent's contention, an error was committed when the Commissioner of Lands did not consider the indigenous people that where settled on the land before allocating the subject land to the Appellant and issuing him with a Certificate of Title. 7 .1 7 The effect of a Certificate of Title was considered in the case of Anti-Corruption Commission v Barnett Development Corporation Limited11 , where the Suprem e Court held as follows: - "Under Section 33 of the Lands and Deeds Registry Act, a Certificate of Title is conclusive evidence of ownership of land by the holder thereof although it can be challenged and cancelled, for fraud or other reasons relating to impropriety, in its acquisition." (Court's emphasis) 7 .18 From the foregoing authority, it is only for reasons of fraud and impropriety in its acquisition that a Certificate of Title can be cancelled. As there is no allegation of fraud in this case, I will proceed to consider whether there was any impropriety in the J25 I P age " manner that the Appellant acquired the Subject Property, which is the subject of this Appeal. 7 .19 Section 3 (4) (c) of The Lands Act1 provides for the procedure to be adopted when alienating land, which may fall under the jurisdiction of an authority as follows:- "Notwithstanding subsection (3), the President shall not alienate any land situated in a district or an area where land is held under customary tenure- (a) without taking into consideration the local •• customary law on land tenure which is not in • conflict with this Act; (b) without consulting the Chief and the local authority in the area in which the land to be alienated is situated, and in the case of a game management area, and the Director of National Parks and Wildlife Service, who shall identify the piece of land to be alienated; (c) without consulting any other person or body whose interest might be affected by the grant; and (d) if an applicant for a leasehold title has not obtained the prior approval of the chief and the local authority within whose area the land is situated." (Court's emphasis) 7 .20 The provision cited above provides that it is the President, acting through his relevant officers, that ensures that all the vital steps are complied with before issuing a Certificate of Title. Therefore, once land has been allocated to an individual and a Certificate of Title J26 I P age issued in that regard, it is presupposed that all the necessary steps such as consulting any person, whose interest may be affected by the grant and prior approval of a chief and local authority within whose area the land is, have been done. 7.21 From the record, the Respondent has contended that the Commissioner of Lands in issuing the Certificate of Title to the Appellant did so without considering the interests of the indigenous people living on the subject land. This contention in my view has not been substantiated as there is unchallenged evidence on record that shows that the Appellant sought the approval of the area Chief Tafuna and that of the Local Authority in the process of acquiring the subject land. The presence of this evidence, in my view is an indication that the interests of any people that could be affected by the alienation of the subject land to the Appellant were considered by the Local Authority and subsequently the Commissioner of Lands, before the subject land was allocated to the Appellant. I further find that it was after the Commissioner of Lands satisfied himself or herself that no interest would be affected that he or she proceeded to allocate the subject land to the Appellant. Therefore, I find that the Respondent has no basis for the contention that the land was allocated to the Appellant without considering the interests of the settled indigenous people. Furthermore, I find that as the Appellant followed all J27 I P age the procedures required by law in obtaining the Certificate of Title, his ownership of the subject land cannot be faulted. 7.22 The Respondent in its submissions has requested this Court to consider the public interest over the interests of the Appellant who is private person, on the premise that the people alleged to be living on the land would be at the mercy of the Appellant if the said Certificate of Title is restored to him. It was further submitted that the Appellant could be compensated for any costs he may have incurred or be given alternative land. In my view, the Respondent has not adduced sufficient evidence to show that the subject land is being used by indigenous people whose interests have and would be affected by the allocation of the land to the Appellant. Further, the memo from the Commissioner of Lands on which the Assistant Chief Registrar alleges to have been directed to cancel the Appellants Certificate of Title has not been exhibited. I therefore do not agree with the Respondent's contention that I should take the interests of the settlers into consideration in determining this matter as the presence of the alleged settlers on the subject land has not been proved. 7.23 Additionally, The Constitution5 and The Land Acquisition Act7 , provide for the manner in which the state can acquire land from a registered proprietor in the interest of the public. Article 16 (1) of The Constitution5 provides as follows: - J28 I P age .. "Except as provided in this Article, property of any description shall not be compulsorily taken possession of, and interest in or right over property of any description shall not be compulsorily acquired, unless by or under the authority of an Act of Parliament which provides for payment of adequate compensation for the property or interest or right to be taken possession of or acquired." (Court's emphasis) 7.24 Section 3 of The Lands Acquisition Act7, provides as follows: - "Subject to the provisions of this Act, the President may, whenever he is of the opinion that it is desirable or expedient in the interests of the Republic so to do, compulsorily acquire any property of any description." (Court's emphasis) 7 .25 It must be noted, however, that even in cases of compulsory acquisition, the state must show that the acquisition of a property is for the interest of the public. 7.26 I will now proceed to address the 5 th ground of appeal, wherein the Appellant alleges that the Chief Registrar of Lands erred in law and in fact, when she decided to cancel the Certificate of Title when any objection or complaint lodged to the Ministry of Lands against the Appellant's continued ownership of the land was statute barred under The Limitation of Actions Act3. 7.27 On analysis of the evidence on record, the Appellant had proprietary interest in the land for approximately 19 years before the Registrar proceeded to cancel the J29 IP age Certificate of Title on the 6th of June, 2018. Section 4 (3} of The Limitation of Actions Act6 provides as follows: - "No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person ... " (Court's emphasis) 7 .28 On the strength of the foregoing authority, in the event that an interested party wished to commence an action for the recovery of the land from the Appellant in this matter, the said action would have been and still is statute barred, as a period of 12 years and more has elapsed from the time the Appellant was issued with a Certificate of Title to the subject land. 7 .29 From the evidence on record and on the admission of the Respondent, there is no record of any complaint being made to the Ministry of Lands by any person. It has been contended by the Respondent, that the Registrar does not require an allegation to be made by a person before he or she can proceed to make a rectification to the Lands Register. I will take this opportunity to state that Section 11 of The Lands and Deeds Registry Act2 requires the following elements to be satisfied before the Registrar can proceed to rectify an entry in the register: - 1. There must be an allegation made by a person to the Registrar; J30 I P age 2. The said allegation must relate to an error or omission, or to an entry or omission procured by fraud or mistake; 3. The Registrar must consider such allegation satisfactorily proved before he can proceed to correct such error or omission entry as aforesaid. 7 .30 From the foregoing, it is clear that the statute provides for the requirement that an allegation must be made by a person to the Registrar, before a rectification can be made to an entry on the Lands Register. This provision does not in any way empower the Registrar with discretionary power to proceed to make rectifications of any errors, omissions or entries to the land register. Therefore, the Respondent's contention that the Registrar can rectify an erroneous entry on the Land Register without an allegation being made by a person, is incorrect. CONCLUSION 8.1 Based on the findings above, this Appeal succeeds and I accordingly order that the purported cancellation of the Appellant's Certificate of Title with regards property Farm No. 9653, be set aside forthwith. 8 .2 I order that the Chief Registrar of Lands and Deeds should forthwith reinstate to the Appellant with a Certificate of Title relating to Farm No. 9653, situate in the Northern Province of the Republic of Zambia. J31 I P age ' 8.3 Costs are for the Appellant, to be taxed m default of agreement. 8.4 Leave to further appeal is granted. Delivered at Lusaka, on the 21st day of September, 2020. P. K. YANGAILO HIGH COURT JUDGE • J32 I Pag e