GWALUGUANO INVESTMENTS LIMITED V PIUS MATANGA AND ORS (2008/HP/0733) [2020] ZMHC 480 (6 November 2020)

IN THE HIGH COURT FOR 2008/HP/0733 AT THE PRINCIPAL HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ·81.t; r - - -~. NCIPAL Ii N; 207.0 ) ; - J - . . REGISTRY 0067. LUS GWALUGUANO INVESTMENTS LIMITED PLAINTIFF AND PIUS MATANGA ZCCM INVESTMENTS HOLDINGS LIMITED ATTORNEY GENERAL 1 ST DEFENDANT 2 ND DEFENDANT 3RD DEFENDANT Before the Hon. Lady Justice F. M. Chisanga on the 6 t h day of November For the Plaintiffs For the 1st Defendant For the 2nd Defendant For the 3rd Defendant Mr. F. Besa, Friday Besa and Associates ln Person Mr. B. Mbilima, In-house Counsel NI A JUDGMENT Cases Referred to: 1. Colgate Palmolive (Z) Limited v. Chuka and Others Appeal No. 181 of 2 005. 2. Mutantika and Another v. Chipungu SCZ Judgment No. 13 of 2014 3. Zulu v. Avondale Housing Authority (1982) 172 4. Galaunia Farms Limited v. National Corporation Limited (2004) ZR 1 5. Lungu and Others v. Attorney General (2016) ZMHC 196 6. Mwale v. Mtonga and Another SCZ Judgment NO. 25 of2015 7. Attorney General v. Clarke (2008) ZR 38 Vol 1 8. J. Z. Car Hire Limited v. Chala and Another (1892) ZR 172 9. Muhango v. Ngulube and Others (2002) ZR 112CAV 10. Nora Mwaanga Kayoba and Another v. Eunice Kumwenda Ngulube and Another Jl I, Legislation Referred to: 1. Snells's Equity, 20th Edition page 63. This matter was commen ced by writ of summons by one Dr. Henry Mulenga. He purchased a property, the subject of this matter, from the 2nd defendant and later sold it to one Bishop Nwaka who then transferred it to the n ow plaintiff. After parties were added, new process was filed . In the statement of claim, the plaintiff avers that the 2 nd defendant was the initial seller of property known as Stand No. 33 1/ Farm 842 Kitwe. The property was sold to Dr. Henry Mulenga who sold it to Bishop Bernard Nwaka who finally sold it to the Plaintiff in 2013 . The plaintiff alleges that Zambia Consolidated Copper Mines (ZCCM) had the duty to prepare survey diagrams and facilitate the preparation of certificate of title in favour of Dr. Henry Mulenga through which the plaintiff would h ave accessed title to the property. ZCCM failed to prepare the said survey diagram and certificate of title. It is averred against the 3 rd defendant, being the overall authority in land alienation and administration in Zambia, that it failed in its duty to ensure that the 2 nd defendant had t h e requisite survey diagrams to facilitate completion of the land transaction. J2 As a consequence of ZCCM and the 3 rd defendant's failure to facilitate completion, the 1st defendant encroached on the plaintiff's land claiming a substantial portion of the property. Kitwe City Council purportedly allocated land to the 1st defendant whose boundary is in the plaintiffs property. It is averred by the plaintiff that the purported allocation to the 1st defendant happened many years after the 2 nd defendant had sold the property to Dr. Henry Mulenga with clearly marked boundaries which were reinforced by a wire fence around the perimeter of the property. The plaintiff claims against the 1st defendant an order directing him to desist from encroaching on the plaintiff's land based on the existing boundaries as shall be confirmed by the 2 nd and or 3rd defendant. As regards the 2 nd defendant, the plaintiff claims for an order directing the 2nd defendant to prepare survey diagram in respect of subdivision 331 of farm No. 842 Kitwe and any other documents relevant to effect completion. And a further order directing the 2 nd defendant to effect completion. Against the 3 rd defendant, an order directing the commissioner of lands being the overall authority in land alienation and administration in Zambia to prepare survey diagrams and all other documents necessary to effect completion. The claim is denied by the 1st defendant who contends that he owns Stand FF9 of Farm 842 in Natwange area, Kitwe. He avers that sometime in December 2004, he went to the 2 nd defendant's office in Kitwe to enquire with a view to J3 purchase some portion of Farm 842 which had been underdeveloped and idle for a long time. The former confirmed that the parcel of land in issue was vacant. The 2 nd defendant produced a drawing plan numbered A4/333A showing a portion of Farm number 842 in which the 1s t defendant expressed interest. The drawing was transmitted to Kitwe City Council. On 7 th January, 2005, the town clerk for Kitwe signed and approved the plan under minute number 1 of 2005 before submitting it to the Commissioner for Lands for consideration by way of recommendation. On 10th January, 2005, Ministry of Lands in Ndola numbered the portion of land as FF9 of Farm 842. On 8 th February, 2005, the 3rd Defendant formally offered the 1st defendant the portion of land at FF9 of Farm 842 Natwange area which the 1st defendant accepted by paying all the required fees on 19th July, 2007. In March, 2005, Council Surveyors from Kitwe City Council installed beacons to clearly show the boundary of the property. The 1st defendant later discovered that some unknown persons had put a fence in his property. He immediately reported this to Kitwe City Council who began to undertake investigations. On 19th June, 2008, the Chief building Officer at Kitwe City Council wrote a letter to Living Water Global Ministries h eaded by Bishop Bernard Nwaka to r emove the beacons which they erected and revert to the Council beacons. Instead of adhering to this directive, Dr. Henry Mulenga (the previous plaintiff) sought an injunction before the courts of law under the guise that the 1st J4 defendant was encroaching on Stand No. 331 of Farm 842 when in fact h e was legally occupying Stand FF9 of Farm 842. In his counterclaim, the 1s t defendant seeks a declaration that the 1st defendant is the legal and rightful registered owner of the portion of land situated at stand FF9 of Farm 842 Natwange area in Kitwe. He also seeks an order to restrain the Plaintiff, whether by itself, its a gents or whomsoever from en croaching and or interfering with his quiet enjoyment of the property located a t Stand FF9 of Farm 842 Natwange, Kitwe. He further claims for damages for loss of use of his property orchestrated by acquisition of an ex parte order for injunction subsisting since 2008. He also claims for costs. In its defence, the 2 nd defendant has d enied all the claims b y the plaintiff. It avers that it did sell a portion of Farm 839 Wusakile Kitwe described as Wusakile Housing Office' to Dr. Henry Mule nga but denied the allegation tha t the 1st defendant's e ncroachment on the plaintiffs property is as a result of its actions or inactions. The 3 rd defendant also filed a d efe n ce stating therein that it is not the duty o f the commissioner of lands to ensure that parties comply with completion requirements. A contract of sale of land is a purely contractual relationship between the parties and it is up to th e parties to e nsure completion requirements are complied with and survey diagrams are prepared. At the trial, th e plaintiff called four witnesses. PW 1 was Bishop Bernard Goodson Nwaka, a shareholder in the plaintiff company . He testified tha t h e JS l purchased the land in dispute from Dr. Henry Mule nga who had acquired it from the 2 nd defendant. Dr. Mulenga availed PW 1 the offer letter h e had received from the 2 nd defendant together with the diagram depicting th e dimensions of the property . It was asserted th at Dr. Henry Mulenga physically visited the property, which was subdivision 33 1 of Farm 842. The dimensions were as stated on the diagram. ZCCM had mounted steel poles and a wire fence separating th e property from the a djoining land. Dr. Henry Mulenga informed PW 1 that th e 2 nd defendant was yet to produce the official survey diagram. The witness went on to testify that after he h ad purchased the property, h e was a pproached by the 1s t defendant who claimed to have received a letter of offer from the Council. To PW l 's amazement, the 1st defendant's diagra m included a portion of property the land that had been sold to him. The 1st defendant immediately started constructin g a fence on that portion and this compelled PWl to seek a restraining order. PW 1 stated that h a d the officers from Council, visited the site b efor e giving out the land th ey would have noticed that it was fenced and that h e was an occupant of the property. The witness testified that the 2 nd defendant had fenced the land as it had ins talled water pipes and a m etre box on it shown on the photographs in the plaintiffs bundle of documents. It h a d been fen ced for a bou t 40 to 50 years prior to the sale. He explained that t h e m etre box is on th e disputed portion and services the plaintiff's property. He went on to state that the photogr aphs were taken before t h e parcel of land was offered to th e 1st defendant. J6 I • He explained that Dr. Mulenga purchased the property from ZCCM and operated a clinic on it. He later rented the Clinic to Dr. Silumesi took the photographs way before the 1st defendant obtained the diagrams. He noted that the 2 nd defendant offered the property to Dr. Henry Mulenga in 1999 while the council gave the 1st defendant a letter of offer in 2005. He is bewildered by the 1st defendant's claim as the property he seeks is fenced and within the plaintiff's property. PWl referred to the offer letter from the 2 nd defendant to Dr. Henry Mulenga and explained that there was an error in the offer letter as it read , "Subdivision 331 of Farm 839" instead of Farm 842. It was however clearly stated that the property being offered was Wusakile Housing House' which is Subdivision 331 of Farm 843, Kitwe. The witness testified that he purchased the property from Dr. Mulenga in 2005 and assigned it to the plaintiff. He asserted that the 1st defendant is not the owner of the portion in contention. Regarding the counterclaim, PWl testified that the 1st defendant is not entitled to any of the claims therein. He stated that it is the 2 nd Defendant's responsibility to ensure that survey diagrams are issued and beacons put in place. Fees were paid to the 2 nd defendant and so it ought to have processed title to the property. PWl went on to testify that the 3 rd defendant was joined to the proceedings because the Commissioner of Lands is responsible for the allocation and J7 " administration of land throughout Zambia . He asked the Court for the reliefs sought in the statement of claim. In cross examination by the 1st defendant, PW 1 testified that there is only one Wusakile Housing Office in Kitwe; he was not aware of a housing office near the black mountain. He stated that no beacons were installed on the property in question by the Council. He reiterated that there was a mistake on the Farm number in the offer letter , which read Farm 839 instead of Farm 842 . He informed the Court t h at the poles that separated the 1st defendant's land from the plaintiffs land were mounted way before the 1s t defendant came into the picture. In cross examination by the 2 nd defendant, PW 1 testified that he was never a ZCCM employer. No survey diagrams were given to Dr. Henry Mulenga but only an offer letter and a site plan with the dimensions of the property. He never removed the wire fence separating the plaintiff's land and the 1st defendant's land. He testified t h at there is an official access road which leads to the property. He testified that he moved the gate upwards in tandem with the diagram showing the site plan which was attached to the official letter. He did not consult a surveyor when he moved it, and neither did he consult the 2 nd defendant. He stated that the property sits on Farm 842. He did not know whether or not the s urvey was done. No survey diagrams were brought to his attention. J8 In cross examination by the 3 rd defendant, PWl testified that the 3 rd defendant was not a party to the transaction in the sale of the property . He stated that fees were paid for ZCCM to facilitate title to the property but to no avail. ZCCM should have recommended to the Ministry of Lands for issuance of title. He did not know whether the 3 rd defendant was aware of the transaction between ZCCM and the vendor. In re-examination, PWl confirmed that he purchased Subdivision 331 of Farm 842, the only Wusakile Housing Office in Kitwe. The water meter installed on the disputed portion was intended to service that office, now his property. The survey diagrams were not dated. The 1s t defendant was not claiming the access road to his property. PW2 was Dr. Henry Mulenga, a former ZCCM employee and previous owner of Subdivision 331 of Farm 842. He testified that when ZCCM was undergoing privatization, it began to dispose of some assets and it was through that process that he was offered Wusakile Housing Unit. He inspected the property before purchasing it. It corresponded with that on the site plan. He then paid for the property; which payment included survey fees. He thereafter converted it into a clinic and when he relocated , PW 1 offered to buy it. He surrendered all the documents pertaining to the property to PWl so that he could obtain title. He later noticed that the gate was positioned at a different place from where it had previously been. No alterations had been made to the disputed portion of the property. He was offered the property in 1998-1999. There was no dispute over the property at the time he sold it to PW 1. J9 In cross examination, PW2 testified that he did not think ZCCM would offer him property fraudulently. The property was wire fenced in three areas; southern, front and northern. The back was a concrete boundary fence. After selling the property, he did not find it necessary to enquire about the relocation of the gate. In further cross examination, PWl said he did not receive any survey diagrams from ZCCM so as to determine the boundary. The transaction was between ZCCM and him, not with the Commissioner of Lands. He did not get survey diagrams because ZCCM disbanded soon after the transaction. He did not apply for title because ZCCM did not provide him with survey diagrams to present to Ministry of Lands for title. Because ZCCM had a robu st legal department, and as he had paid the fees , he expected the company to present him with title. He did not inform the 3 rd defendant of the transaction. In re-examination, PW2 testified that he was offered Wusakile Housing Office, the property was not described in any documentation at the time of p ayment. There was n o intimation that the dimension of the property would change after survey. PW3 was Harrison Chali, a former employee of ZCCM. He worked as a Senior Housing Officer at Wusakile Housing Office. He testified that the former Wusakile Housing Office was sold to PW2 and is now operating as a lodge. When he visited the property, h e noticed that the gate had b een moved and the property had been renovated. He stated that there was a fence that ran along JlO the access road to meet the gate. They used to store firewood for funerals on the other hand of the fence (the disputed portion). In cross examination, PW3 testified that by moving the gate, PW 1 has closed the access road to his property thereby making it part of his property. He did not understand the diagram on the site plan. There were no beacons on the property. PW4 was Dr. Steven Silumesi, a medical practitioner. He testified that he took over PW2's Harmony Hospital and managed it from 2003 to 2005. The property is now a lodge run by PW 1. He stated that there are no major changes in terms of boundaries but for another entrance from the dual carriageway. He pointed out the boundaries of the property on the pictures in the plaintiffs bundle of documents. He testified that the lawn was part of the property and he planned to build wards on that space had the property been sold to him. When cross examination, the witness testified that the site plan at page 15 of the 1st defendant's bundle of documents was not properly drawn as the positioning of the fence and gate were not as they were when he occupied the property. He stated that he was a mere tenant and was not aware of any beacons on the property. He testified that the drive was covered with concrete and a small guardhouse had been erected. The lawn was fenced and the two wire fences met at a right angle. In re-examination, PW4 stated that the area with the lawn is exactly as it used to be when he occupied the property. Jl 1 This marked the close of the plaintiffs case. The 1st defendant, Pius Chile she Matanga, testified on his own behalf. He testified that he was occupying Stand No. FF9/842 Natwange Township, Kitwe which was offered to him in a letter dated 8 th February, 2005 at page 1 of his bundle of documents. Referring to page 16 of the bundle of documents, He testified that when his plot was created by Kitwe City Council, and according to the site plan, the gate was above the telephone line. The boundary of the property has now been moved beyond the telephone line. In March, 2005, Kitwe City Council installed beacons on FF9. Between April and May, he discovered that someone had installed a wire fence in his property and he reported the matter to the Council. He went on to testify that on 19th June, 2008, Kitwe City Council issued instructions to Living Water Global Ministries, headed by PW 1, to remove the fence which had been erected as the same was in his property. It was after this that PWl sued the 1st defendant through the previous plaintiff, Dr. Henry Mulenga. The 1st defendant testified further that before the gate was moved, the lawn bare and was outside the gate as it is part of his property. The witness was aggrieved as PW 1 did not consult ZCCM nor engage a surveyor before moving the gate outwards. The movement of the gate led to the plaintiff's encroachment on his portion of land. He testified that one of the conditions of sale by ZCCM was that the property was sold in its condition meaning that it was not to be tempered with. PW 1 's action of moving the gate and the wire fence was a contravention of the conditions of sale set by ZCCM. Therefore the J12 Court ought to dismiss the plaintiff's claim. He stated that the plaintiffs claims against him are baseless and false . Regarding his counter claim, the 1st defendant prayed for the reliefs sought therein and stated that the plaintiff has trespassed on his property from 2005 and in 2008. In cross examination, the 1st defendant testified that the prope rty occupied by the plaintiff is a lodge and rest aura nt. Befor e ZCCM sold the property to Dr. Henry Mulenga in 1999, it was a 'Community Development Housing'. It is an old building that had been standing for decades. He was offered the land adjacent to this property by Kitwe City Council on 8 th February 2005 after creating the plot. At this time, he did not know the plaintiff. When shown the pictures in th e plaintiff's bundle of documents, th e 1st defendant identified the portion of land h e claims to be his. He testified that a wall fen ce divided his land from the plaintiffs. He stated that the water m eter box tha t used to service the plaintiffs property is on the disputed portion. He however stated that when h e was offered that property, and when the plaintiff moved the gate, the water metre was not there. He was not sure when it was installed. According to him, the plaintiff annexed the access road into his property by moving the gate. He r eferred to photographs that were taken b efor e h e was allocated the property showing the disputed portion overgrown by grass, which presently h as a well maintained lawn. He also identified poles that demarcated his property from the plaintiffs. Jl 3 The witness went on to testify, in cross examination, that he approached the council before the beacons were placed . The site plan at page 16 of the 1st defendant's documents was prepared after the witness had already been allocated the piece of land. The site plan at page 15 was in existence before the property was allocated to him. It does not show the dimensions of the area. As the pictures a nd site plans were somewhat unclear, I considered it necessary to visit the site to a ppreciate the boundaries of the property. I therefore adjourned the matter for a scene visit and continued cross examination of the 1st defendant. At the scene, the 1st defendant testified that h e found the white painting on the wall on the disputed portion. When shown the d emarcation, he testified that it was a false one erected by the plaintiff. He identified the poles for the fen ce and testified that the wire fence was not previously there. He asserted that th e h eap of soil a t the entrance of the plaintiffs property had b een placed with the plaintiff's permission. He informed the court that the reloca tion of the gate does not affect him, as h e was not claiming the access road. He explained the dimensions of his property in r elation to the diagram prepared in 2004. He showed the Court the portion of land he is claiming a nd testified that wh en he was allocated the property, it was bare with overgrown gr ass . In r e-examination , th e 1st defendant testified that the fence and the poles that were on site were not there wh en he purchased his property. His interest, h e J14 stated, was the portion that was disputed. It was bare land with no vegetation on it. This marked the end of the 1s t defendant's case. The 2 nd defendant called one witness, Joseph Kaela Bwalya, Chief Surveyor at Mopani Copper Mines. He supervises surveyors who carry out survey duties underground and on the surface. He held a similar position in the 2 nd defendant. He testified that the 2 nd defendant's properties were sitting on six farms namely Farm 839, 840, 841, 842, 940 and 1469. When Mopani Copper Mines investors came on board, they were not interested in residential areas. None core assets were identified, marked on plans and sent to the Land's office for numbering. The same was done to residential properties so that buyers could process title in future. Dr. Mulenga was offered a property sitting on Farm No. 842 known as Wusakile Housing Office. An A4 format sketch was prepared for the property. The witness explained that the difference between a location plan and survey diagram is that a survey diagram is prepared by a licenced surveyor for purposes of obtaining title while a location plan simply shows the number of assets in a prescribed area. It is drawn to scale, the measurements on the plan give the correct dimensions. DW2 testified that the property that was sold to Dr. Mulenga was the Wusakile Housing Office. The property was drawn to a scale of 1:5000. He stated that h e physically went to the site in 2016 when he was summoned to inspect the property and verify what portion was offered to Dr. Mulenga. The area was J15 defined by a wire fence. He informed the court that he discovered that th e plaintiff's boundary was not matching the marks on their drawing. He referred to a boundary as the one between the plaintiff and the 1st d efendant's property . He concluded that the area was bigger than what was given. The witness testified that he was unable to see the stumps that were cut. When he visited the scene in 2016, no measurements were taken. There was an access road to the housing office and a gate resting on two poles. Using the sketch plan and the scale of 1:5000, the witness proceeded to measure th e plaintiff's boundaries. He took the following m easurements from an unda ted sketch plan exhibited at page 3 of the 1st defendant's bundle of documents. According to that sketch plan the measurements were 10mm South, 10.5 mm west, 11mm North and 6mm East. On the ground, these measure ments translated as follows: 10mm South was 50 metres, 10.5 mm West was 52.5, 11mm North was 55 metres and 6mm East was 30 metres. When Mr. Bwa lya measured these dimensions on the ground, the South m easured 55 metres, the West measured 54.2 metres, the North measured 53.5 metres while the East measured 47 m etres. He explained that the disparities were because of a lack of equipment; he was using a tape measure, which gives a rough idea. He concluded that the plaintiff's plot had been extended as the disparities on the plan and on the ground were considerable. He stated that the poles on the property were the original poles that determined the boundaries of the property. J16 In cross examination by the 1st defendant, Mr. Bwalya testified that he merely measured the line on the road reserve. When referred to page 15 of the 1st defendant's bundle of documents, he testified that the site plan on that page was more accurate than that at page 3 because it was drawn on a larger scale. Both are site plans drawn by him. He stated that at his last visit, there was a beacon that demarcated the land, which he could not see on site because of the renovations that had taken place. He could not pinpoint the exact location of the gate. He testified that he is a mere surveyor, h e was not involved in settling land disputes and could only verify and approve site plans drawn by him. In further cross examination on the plaintiffs behalf, Mr. Bwalya testified that he used the fences as an aid to draw boundaries of the area. There were no approved survey diagrams for the property. He did not personally take the dimensions of the property offered to Dr. Mulenga but conceded that the surveyors used the fences as a guide to come up with diagrams. The diagrams were to match with the fences on the ground. He stated that on site, the poles that had been cut were evidenced by stumps. When shown an old rusty wire fence rolled up in a corner, he stated that he would have been guided by the wire fence as it is as it stood at the time. No such pole was seen at the spot where the witness testified the property was to end. Referring to his measurements, the witness testified that disparities of 17 metres and 9 metres were too significant. Mr. Bwalya testified further that a measuring tape is very reliable in measuring distance. The margin of error should be plus or minus one metre and therefore a disparity of 17 m etres is unacceptable. J17 When referred to the site plan at page 16 of the 1st defendant's bundle of documents, Mr. Bwalya testified that the survey department prepared the site plan and endorsed a date. As regards the undated site plan, he stated that it was questionable if it was prepared after the sale of the property to Dr. Mulenga. Mr. Bwalya testified that the 2 nd defendant was to prepare survey diagrams on payment of survey fees. He was not aware if a survey was done and beacons placed by the 2 nd defendant. If this were done, verification would be easier. When referred to page 15 of the 1st defendant's bundle of pleadings and documents, Mr. Bwalya testified that the site plan on that page was dated 2004 and stamped 7 th January, 2005 by the Council. He could not dispute that previously, the disputed portion was used to store firewood. When shown a picture at pages 9 and 11 of the plaintiffs Supplementary Bundle of Documents, he verified that the images depicted the poles that were on the property when it was owned by the 2 nd defendant. He stated that the 2 nd defendant h as not finished preparing title for the buyers. This marked the end of the defence. The plaintiff and 1st defendant filed submissions to support their respective cases. On behalf of the plaintiff, it was submitted that a valid contract of sale enforceable against the 2 nd defendant was in existence. Reference was made to J18 • Treitel: Law of Contract, 13t h Ed, Sweet and Maxwell at page 1 where this statement is found; "a contract is an agreement giving rise to obligations which are enforceable or recognized by law. The factor which distinguishes contractual from other obligations is that they are based on agreement of contracting parties" It was learned counsel's contention that the plaintiff having purchased the land, owns it together with all the rights and benefits of land ownership as defined by law. It was argued that the boundaries to the property which was purchased from the 2 nd defendant had been standing since 1959 when the property was built. That the 1st defendant could not therefore have a p lot created for him in 2005 with intere sts that supersede those of the plaintiff. Counsel submitted t h at the 1st defendant' s documents were discredited as the source of the drawings could not be established. That the beacons the 1st def end ant claimed had been erected in the p laintiffs property were not seen on site. He submitted that by law, beacons are only erected once survey diagrams have been prepared and approved, which element was lacking in the case of the 1st defendant. He referred the Court to Section 32 of the Land Survey Act, Cap 188 of the Laws of Zambia. It was prayed that the Court upholds the pla intiffs claims against the l5t defendant. It was also the plaintiffs prayer that the 1st defendant be ordered to remove the heap of sand on the plaintiffs gate as seen on site conduct which Jl9 amounts to trespass and infringement of the plaintiffs quiet enjoyment of the property. As against the 2 nd defendant, it was submitted that the property that was sold to the plaintiff was not surveyed; the parties expressly agreed that upon payment of the agreed fees, the 2 nd defendant would ensure that the property is surveyed, consent is obtained as well as a certificate of title. The 2 nd defendant neglected to do so. Counsel has submitted that the 2 nd defendant witness was full of contradictions both in chief and in cross examination. He failed in his duties as a surveyor who was called to testify as an expert. He presented an inaccura te and misleading document in breach of Section 10(1) (a) of the Land Survey Act. Counsel draws the Court's attention to the case of Mutantika and Another v. Chipungu2 . The Supreme Court quoted Lord Kenyon in stating that: "A man shall not be permitted to 'blow hot and cold air' with reference to the same transaction or insist at different times on the truth of each of two conflicting allegations, according to the promptings of his private interest," It was learned counsel's submission that had the 2 n d defendant done a di_ligent job and performed its obligations, the plaintiff would not have been exposed to the expense of these proceedings. It was prayed that judgment be in favour of the plaintiff as regards the claims against the 2 nd defendant. Counsel submitted as regards to costs, that in apportioning the same, the 2 nd J20 defendant, who is the genesis of this dispute, should be condemned to foot the costs incurred. He relied on Order XL (6) of the High Court Rules Cap 27 of the Laws of Zambia which states that costs are in discretion of the Court. In his submissions, the 1s t defendant contended that t he plaintiffs claims were founded upon the purported purchase of Subdivision 331 of Farm No.842 Kitwe, which property was bought by Dr. Henry Mulen ga, and sold to the plaintiff. The d ocuments before Court however refer to the sale of Farm No. 839, Wusakile, Kitwe. No evidence was produced to the court in relation to subdivision 331 of Farm 842, Kitwe. The plaintiff had failed to discharge its onus of proving that it was th e legal owner of subdivision 331 of Farm 842, Kitwe, as it was not knowledgeable of the said property, or the extent of its boundaries. Its claims against the first defendant are unmerited, frivolous and unwarranted. The 1st defendant referred to Zulu v . Avondale Housing Authority3 and Galaunia Farms Limited v. National Corporation Limited4 wh e re the Court h eld that the burden to prove any allegation is a lways incumbent on the one who alleges. My attention was also drawn to Phipson on evidence, 17th Edition Paragraph 6-06 at page 151 , wh ere the following is found: "so far the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative issues, if when all the evidence is adduced by all parties, the party who has this burden has not discharged it, the decision must be against him. J21 It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons" It was submitted that the plaintiff had lamentably failed to discharge its burden. The claim against the 1st defendant for encroachment is misplaced as that property is not known to the 1st defendant, and does not exist but is only known to the plaintiff. The plaintiff has failed to show or produce any documentation to buttress its claims on subdivision 331 of Farm No. 842 , Kitwe. Mr. Matanga has cited the case of Lungu and Others v. Attorney Gneral5 where the court dismissed the plaintiffs case for failure to prove its case to the required standard. The 1st d efendant submitted that the Court should uphold his counter claim as h e is the rightful owner of Stand FF9 of Farm 842 Natwange, Kitwe and the plaintiff has no legal rights over that property. He has urged the Court to discharge the injunction that has subsisted since 2008 and h as gravely affected him. In reply, it was submitted on behalf of the plaintiff that throughout trial, the identity and location of the property belonging to the Plaintiff was never in dispute. If any dispute were to arise, the 2 nd defendant would be the rightful party to dispute as it was the initial seller. It was submitted that the issue for determination was the 1st defendant's encroachment and not the description of the property. J22 Relying on the cases of Mwale v. Mtonga and Another6 and Attorney General v. Clarke 7, on the importance of pleadings, learned counsel argued that the 1 st defendant did not make the issue of property numberings a central part of his defence. It is not in his pleading, nor did he adduce any evidence on the issue. Raising it is in his submissions amounts to adducing fresh evidence without giving the plaintiff an opportunity to object to that evidence thereby occasioning an injustice to the plaintiff. Concerning the 1st defendant's counter claim, learned counsel contended that the 1st defendant had a burden to prove his claims in the counter claim which burden he had not discharged as he did not adduce any evidence at trial or anywhere in the proceedings that would move the court to rule in his favor. He has also made reference to the case of Zulu v. Avondale Housing Project Limited3. Regarding the claim for damages for loss of use of property, it was submitted that there was no proof of such loss by the 1st defendant. Counsel relied on the case of J. Z. Car Hire Limited v. Chala and Anothe~ and Muhango v. Ngulube and Others9 where it was held that any party in a suit claiming for damages or a special loss must prove the damages or losses claimed. No submissions were filed on behalf of the 2 nd defendant. I have considered the evidence led by the parties on their respective positions. It is beyond question that one Dr. Henry Mulenga was, on 7 th May, 1999, J23 offered Wusakile Housing Office for sale. The said office was on a portion of Farm No.839, Wusakile in Kitwe. The purchase price included anticipated survey fees. It was indicated that the property was being, sold in "its present condition" at the time. The said Dr. Henry Mulenga accepted the terms and conditions of the proposed sale of the property to him by ZCCM. The location plan and social assets for disposal in Chamboli Natwange and Wusakile Township produced by the 2 nd defendant shows Farms Nos. 842 and 839, and Wusakile Housing Office is referred to as Sub 33 1, Farm, 842. The date of the document is not showing. What is indisputable, however, is that what the vendor offered, and the purchaser accepted to purchase is Wusakile Township office situated in Wusakile. The contracting parties were ad idem, and contracted for the purchase of a known property. Subsequent errors in numbering cannot affect a contract for sale of an identifiable portion of land. This position is reminiscent of Banda v. Tembo SCZ Judgment No . 18 of 2006 wher e the Supreme Court upheld the sale of an identified portion of farm No.1655, Chisamba. The Court reasoned, inter alia, that the portion sold was agreed and identified. Turning to the instant case, Dr. Henry Mulenga disposed of the property to one Bishop Bernard Goodson Nwaka on 5 th December, 2005. The property was described as "All THAT piece of land more or less being a portion of Farm No. 839 situate in Kitwe in the Copperbelt Province of Zambia". The title was to commence with the certificate of title relating to the property. J24 Bishop Bernard Nwaka later sold the property to Gwaluguano Inve stment Limited in the year 2013. The title was to commence with the certificate of title that was to be issued in respect of the land. On the other hand, the 1st defendant was offered property No. F / 842 / FF9 on 8 th February, 2005. This was after the Kitwe City Council had approved a site plan on 10th January, 2005, which appears at page 17 of the 1s t defendant's bundle of pleadings and documents. The 1st defendant initiated the alloca tion of the land to himself, which he says was vacant. The visit to the disputed plot was illuminating. I was shown the Wusakile Housing Office when the first defendant and DW2 testified. Contrary to DW2 's assertions, I observed that the wire fence that had been erected at the end of the land on which the Wusakile Housing Office was situated had stumps of rusty metallic poles, which had been sawn off. This witness set out to tell the Court that the boundary had been moved, from where it had been, but could not point to the part where the boundary had initially been, according to him. Also, when he translated the measurements from the diagram to the ground, there were considerable differences, way beyond acceptable ranges. On the diagram, the dimensions of the plaintiffs plot wer e 52 . Sm, 55m, 30m and 50 meters. When the shortest side was measured in the front, the measurement came to 47 meters, instead of 30 meters. Whereas the witness had initially confidently informed the Court where the boundary had been, he J25 was in the end reduced to saying he was merely giving an estimate of where the boundary had been because the poles had either been removed or buried. The witness also confirmed that there were old poles, and that the poles seen by the Court were the original poles. He referred to a diagram that was drawn in 2004, a site plan depicting the boundary of the property sold to Dr. Mulenga. The evidence of this witness revealed inaccuracies in the measurements. When cross examined by the 1st defendant whether there was a wire fence , the witness's response was that h e was not working there for him to pin point with exactness. He said it is not his duty to say this is okay or this is not okay. It was the council that approves. When cross examined by Mr. Besa, the witness testified that they were using the fences as an aid to come up with the diagrams, and that the diagrams should match with the fences on the ground. He also identified an old rusty pole, saying those were the poles they were following. The witness said he did not personally take the dimensions for the plot, and confirmed that the person who did so should have referred to where the fences stood at the time. This witness confirmed the existence of fencing poles, sawn off stumps of a fencing pole. He also confirmed the presence of a wire fence similar to one that was still standing in a corner. He conceded that there was a rusty wire fence. He agreed that he would have been guided by the fence. He conceded that no one went to measure on the ground. They did it on the diagram itself. He also J26 ., conceded that a measuring tape was very reliable. If the diagram was correct, the allowable m argin of e rror would be plus or minusl meter. He also conceded that the diagram he had relied on was undated. The witness also informed th e Court that the diagrams at pages 15 to 1 7 of the 1st defendant's bundle of documents were not numbered. This witness' testimony revealed that the wire fence boundary should h ave been followed when drawing a site plan for th e property initially sold to Dr. Henry Mulenga. The purported site plan revealed serious disparities with the purported boundary. On the other hand, I was able to observe some old rusty poles along which a wire fen ce h ad been erected. I also observed stumps of old and rusty m etallic poles for a wire fence which h ad been cut off. In the corner was a rusted metallic pole which had been p art of a wire fe n ce. This evidence supports th e infe ren ce, which I make, th at th ere used to b e a wire fence around the Wusakile Housing Office which was sold to Dr. Henry Mulenga. As conceded by DW2, I find as a fact that the dimensions of the plot wer e determined by the said wire fence. The surveyors, wh en drawing the site plan for the property, should h ave followed the dimensions depicted by the wir e fence . The witness informed m e that he was not the one wh o went to the site, and tha t whoever went there should h ave followed the line. The erroneous site plan clearly gen er a ted and fueled the dispute between the plaintiff and the 1st defendant. J27 Based on the foregoing, I discount the 1st defendant's claim that his plot began near a flower pot that was on the lawn. This assertion is baseless because the rusted poles and the remains of an old wire fence indicate where the plot had ended during the time the property was sold to Dr. Henry Mulenga. This witness who bought the property first, informed me that the property was bounded by a wire fence. PW3 also testified that firewood used to be kept in the area where the lawn was. The gate to the plot was initially at the end of the access road. This gate was removed and affixed at a place that is flush with the point where the old wire fence stood. Although the gate was moved to another point, this, it is a conceded by the 1s t defendant, does not affect the 1st defendant. On the foregoing discussion, I discount the site plan purportedly drawn by the Mopani Survey Department as it was drawn without adherence to the wire fence that bounded the plot sold to Dr. Henry Mulenga. I further hold that the property sold to Dr. Henry Mulenga was sold to him as delineated by the wire fence that stood around the Wusakile Housing Office. When the property was sold to the plaintiff therefore, what the plaintiff purchased was the property whose dimensions had been defined by the wire fence around it. In fact the contract of sale stated that the property was being sold in its current condition to Dr. Henry Mulenga. J28 ' Therefore, the 1st defendant, whose plot was created later, could not be allocated a plot whose dimensions had encroached on to the property that had already been sold off to Dr. Henry Mulenga. I thus hold that the 1s t defendant's plot begins where the old wire fence poles and stumps are, that is, where the old wire fence stood. The current fence erected along the line where the old wire fence stood therefore accurately depicts the boundary of the plaintiff's property as initially sold to Dr Henry Mulenga, who sold it to Bishop Bernard Nwaka, who finally disposed it off to the plaintiff. The 1st defendant heaped sand at the entrance of the plaintiff's property. It is clear that he did so deliberately to prevent the plaintiff from accessing its property through that entrance. I direct the 1st defendant to remove the h eap of sand forthwith, as he had no right to block the plaintiffs entrance. Turning to the claim against the 2nd defendant, I find no privity of contract between the plaintiff and the 2 nd defendant. The plaintiff cannot therefore claim for the survey diagram from the 2 nd defendant. It is the initial purchaser, Dr Henry Mulenga who could have pushed for the same. As for the 3rd defendant, it bears no obligation to ensure that parties complete contracts of sale they enter into, as erroneously argued on behalf of the plaintiff. J29 ,. C The upshot of my decision is that the plaintiff has succeeded in its main claim. The area that was initially sold to Dr Mulenga is now beneficially owned by the plaintiff as I have found above. Therefore, the erroneous site plan drawn as depicting plot No. FF9 /842 offered to the 1s t defendant is canceled forthwith. The 1st defendant will procure a site plan depicting the area beginning at the point where the old wire fence stood. The plaintiff is at liberty to procure a survey diagram depicting the correct dimension of the plot as found in the discussion above. I award the plaintiff costs of this action against the 1st and 2 nd defendants, to be agreed and in default truced. I dismiss the 1s t defendant 's claims as they lack merit. Dated the ........ ........ ... day of ........................... 2020 6-(j,_ /\!Jo~ F. M. CHISANGA HIGH COURT JUDGE J30