Hildah Ngosi (suing as Administrator of the Estate of Washington: Ngosi) v The Attorney General and Anor (SCZ JUDGMENT NO. 18/2015) [2015] ZMSC 189 (24 April 2015)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 145/2010 (249) SCZ JUDGMENT NO. 18/2015 HOLDEN AT LUSAKA (C ivil J urisdic tio n) BETWEEN: HILDAH NGOSI (suing as Administrator of the APPELLANT Estate of Washington: Ngosi) - AND THE ATTORNEY GENERAL LUTHERAN MISSION (ZAMBIA) REGISTERED TRUSTEES IST RESPONDENT 2ND RESPONDENT Coram: Chibomba, Muyovwe and Wood, JJS. On JSth Nove mbe r, 2014 and 24th April, 2015. For the Appe lla nt: H. S ilweya of Messr s S ilweya a n d Com pan y. For t h e 1 s t Responde nt: F. [m as iku- Senior State Advocate and M. Nzala - As sista n t Senior State Advocate. For the 2 nd Re s ponde nt: N / A. JUDGMENT Wood, JS, delivered the judgment of the Court. J2 (250) CASES REFERRED TO: · Spiros Konidaris v Ramlal Kanji Dandiker, Appeal No. 157 of 1999. · Samba and two others v Paikani Mwanza (2000) Z. R. 79. 3 · Anort Kabwe and another v James Daka and two others (2006) Z. R 12. 4 · Trevor Limpic v Rachel Mawere and two others, SCZ Judgment No. 35/2014. LEGISLATION REFERRED TO: 1. Section 13 of the Lands Act, Cap 184 of the laws of Zambia. 2. Section 23 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia. OTHER WORKS REFERRED TO : Black 's Law Dic tionary, 9th Edition. This is an appeal against a decision of the High Court dismissing a claim for cancellation of a certificate of title for fraud and/ or compensation for d e molished buildings and developments amounting to not less than Kl00, 000 .00 (rebased) . The brief facts in so far as they are relevant to this appeal are these. The appellant's father, the late Washington Ngosi was an e mployee of a company called South End Properties Limited. In appreciation of his faithful, loyal and dedicated services to South J3 (251) E nd Properties Limited, he was rewarded with ownership of Farm 378a/B/74, Lusaka, which was in the name of South End Properties Limited. No formal assignment or deed of gift was executed by South End Properties Limited 1n favour of the late Washington Ngosi. Nevertheless, the Ngosi family continued living on the property as their own and some siblings of the appellant were even born there. There is evidence from an affidavit sworn by Oliver J . Irwin , a manager, officer, director and / or shareholder of South End Properties Limited confirming that Farm No. 378A/B/3/74, Lusaka had been given to the late Washington Ngosi and his family as a reward for his good services, but that he did not register the conveyance even though the Certificate of Title had been given to him. The said affidavit also denied any knowledge of South End Properties Limited receiving any document of re-entry relating to Farm No. 378a/B/3/74, Lusaka. The computer printout from the lands department showed that a Certificate of Title was issued to South End Properties Lirnited on 16 th January, 1975. This was followed by a notice of J4 (252) intention to re-enter by the Commissioner of Lands on 16th April, 2001 and a certificate of re-entry was lodged on 30 th January, 2002. The 2 nd respondent was then offered a 99 year lease from 1 st May, 2 002 in respect of the same property and a Certificate of Title was issued to the 2 nd respondent on 2nd April, 2003. The evidence also showed that after the death of Mr. Washington Ngosi in 1995, the 2 nd respondent approached the appellant's family with a view to buying the property so that it could build a church on it. Then one day, the 2°d respondent demolished the house that was on the land. The house had been built by the appellant's late father. In its defence, the 1 s t respondent stated that the Commissioner of Lands re-entered Farm No. 378A/B/3/74, Lusaka due to non-payment of ground rent. It denied any fraud in the manner in which the re -entry was effected. The 2 nd respondent stated that at the time it applied for the property in issue, it was a disused ditch which had been used by South End Properties Limited as a source of building materials to construct Avondale Township. Next to the disused ditch was a temporary structure that JS (253) was initially meant for construction workers which was being occupied by the late Washington Ngosi, who was a foreman for South End Properties Limited . In that. respect, the property was never fully developed. The 2°d respondent's defence also revealed that when queried over the status of the said land, the occupants of this land admitted that they were mere squatters . The 2 n d respondent counter-claimed for mesne profits in view of the appellant's c ontinue d occupation of the property. For some reason, none of the r e sponde nts called any witnesses to testify on their b e h a lf. After a n a lysing a ll the evidence that was before it, the court below found tha t the a ppella nt's purported interest in the said piece of land was n eve r r egis ter ed a nd tha t South End Properties Limited, the former owner of the s a id piece of land had never contested the c e rtificate of r e -e ntry. Conseque ntly, the appellant had no locus standi to challenge the certificate of re-entry on her own behalf, as a dministrator of the estate of the late Wa shington Ngosi or indeed, on b e h a lf of South End Prope rtie s Limited. This meant that the J6 (254) certificate of re-entry and the subsequent alienation of the said piece of land to the 2nd respondent remained valid. With regard to the alternative claim for compensation in respect of the demolished structure, the court held that the Commissioner of Lands was not even aware of the existence of the appellant's family or indeed, their purported interest in the property. The appellant should, therefore, have sought compensation for the demolished house from South End Properties Limited. The appellant's interest in the land, if any, could only have been as a result of an arrangement between the appellant's fathe r and South End Properties Limited. The two respondents w e re not privy to that arrangement. The learned trial Judge then dismissed the whole _claim as well as the counter-claim for mesne profits. On appeal, the first ground attacked the learned trial Judge's finding that the appellant had no locus standi to claim compensation against the respondents because her claim and interest were not registered on, or against Farm No. 378a/B/74, Lusaka. The second ground of appeal was that the learned trial J7 (255) Judge erred when he found that this case was distinguishable 1n equity from the case of Spiros Konidaris v Ramlal Kanji Dandiker1 on which the appellant relied. The third ground of appeal was that the learned trial Judge erred when he found that South End Properties Limited had never contested the certificate of re -entry by the 1 st respondent. Ground four of the appeal contained four subsidiary grounds of appeal which are similar to grounds one to three. Ground (iv) (a) was that the learn ed trial Judge erred and misdirected himself in law and fact in deciding that the appellant did not have the locus s tandi to claim title a nd/ or compensation for the developments in equity on an unregistered interest in land, much against the affidavit evidence of transmission of that interest to the appellant contained in the affidavit of one Olive r J . Irwin and the valuation report. Ground (iv)(b) was that the learned trial Judge erred and misdirected himself in law and fact and failed to properly interpret and apply the d ecision of the case of Spiros Konidaris v Ramlal Kanji J8 (256) nd Da iker1 on the equitable claim for compensation arising from the inherited development on the unregistered interests in the land. In respect of grounds (iv) (a) and (b), it was argued that the appellant was entitled to compensation for the demolished house because in equity, even a squatter has a right to compensation. _ , This is based on the principle that the squatter expended labour, time and resources when putting up the structure that is brought down. Refe rence was also made to the findings in the 2 nd respondent's valuation report dated 4 th June, 2004 recommending that some compensation b e paid to the appellant. Ground (iv)(c) of the appeal related to the refusal by the learned trial Judge to join South End Properties Limited to the *- proceedings and considering the issue of the certificate of re-entry in the absence of evide nce from South End Properties Limited. Unde r this ground, the appellant argued that since South End Properties Limited had been barred from the proceedings, it could not attest to the development that was on the land when it was given to the late Mr. Washington Ngosi . J8 (256) Dandiker1 on the equitable claim for compensation arising from the inherited development on the unregistered interests in the land. In respect of grounds (iv) (a) and (b), it was argued that the appellant was entitled to compensation for the demolished house because in equity, even a squatter has a right to compensation. _., This is based on the principle that the squatter expended labour, time and resources when putting up the structure that is brought down. Reference was also made to the findings in the 2 nd respondent's valuation report dated 4 th June, 2004 recommending that some compensation be paid to the appellant. Ground (iv)(c) of the appeal related to the refusal by the learned trial Judge to join South End Properties Limited to the 4P: proceedings and considering the issue of the certificate of re-entry in the absence of evidence from South End Properties Limited. Under this ground, the appellant argued that since South End Properties Limited had been barred from the proceedings, it could not attest to the development that was on the land when it was · n to the late Mr. Washington Ngosi. give JlO (258) on 2nd Apr1·1, 2003 , h t e President of Zambia granted the 2 nd respondent a 99 year lease in respect of the property and a Certificate of Title was subsequently issued. The re-entry was never challenged by South End Properties Limited as registered owners and at no time did the register show any purported interest by the appellant. With respect to ground two, the 1st respondent argued that this appeal should b e distinguished from the case of Spiros Konidaris v Ramlal Kanji D a ndiker1 because in that case, there was a n oral a g r eem e nt tha t h a d b een entered between the two parties to allow the would b e purc h ase r to develop the land in order to comply with the la w which prohibited the selling of bare land. It was contende d tha t in this case , the learned trial Judge established that the structure that w a s on the property in issue was a make shift structure mea nt for cons truc tion workers. The fa cts of the two c a s e s w e re , therefore , not simila r. Whe n a rguing the third ground of appeal, the 1 s t respondent r e lied on the provisions of Section 13 of the Lands Act, Cap 184 of Jl 1 (259) the Laws of Z b. . am 1a which deals with re-entry of land by the State and the t s eps to be taken when making such re-entry. The 1 st . respondent argued that Section 13 of the Lands Act allows an aggrieved person to appeal to the Lands Tribunal within 30 days while in this case, the appellant commenced proceedings nearly 4 years after the certificate of re-entry. With regard to ground (iv) (a) which dealt with locus standi, the 1 st respondent adopted its arguments in respect of ground two of the appeal and maintained that the appellant had no locus standi as the purporte d interest had never been registered against the property. With respec t to ground (iv) (b), the 1 st respondent also adopted its arguments unde r ground two of the appeal and maintained that the case of Spiros Konidaris v Ramlal Kanji Dandikerl had b een prope rly inte rpre ted and that in any event, the appellant had admitted that the interest being claimed was not registered. In respect of ground (iv)(c) of the appeal, the 1 st respondent tended that the learned trial Judge properly held that the con J12 (260) appellant should have sought compensation from South End Properties Limited. The appellant had, at the opportune time, failed to demonstrate that she had a claim for compensation as against South End Properties Limited when she made the application for joinder. Despite the appellant's claim that South End Properties - Limited was connected to or may be interested in the result of this action, South End Properties Limited had shown no interest in challenging the re-entry on the property. With regard to ground (iv} (d), the 1 st respondent took the view that the learned trial Judge did not err or misdirect himself in fact and law whe n h e did not confirm the ex-parte injunction against the 2nd respondent as it was the appellant's responsibility to move the ~ court to do so. The 2nd respondent's response to the first ground of appeal was that the court correctly found that the appellant was not entitled to be compensated for any loss or damage occasioned by the eviction. The reasons w ere that the appellant had no locus stc:uldi, was claiming against a church which is a charitable J13 (261) organization and that there was no proof of registration of the appellant's interest. The appellant had also lied that she had been on the property for over 45 years when the valuation report showed that the buildings on the land in issue ·could not have been more than 45 years old. The case of Spiros Konidaris v Ramlal Kanji Dandiker1 did not apply to this case since there was no evidence of an agreement between South End Properties Limited and the appellant. With regard to ground two of the appeal, the 2 nd respondent submitted that the appellant's interest in the land, if any, could only have been as a result of an arrangement between the appellant's deceased fathe r and South End Properties Limited. The two respondents were not privy to that arrangement and as such, (I there was no landlord and tenant agreement between the appellant and the 2nd respondent. We have anxiously considered the arguments advanced by the parties in respect of this appeal. We have also perused the record of .. J14 (262) appeal which gave us an insight into the history leading to this appeal. This appeal raises three issues and these are: (i) Were the provisions of Section 13 of the Lands Act corn plie d with? (ii) Did the appellant h a ve any rights at la w vis-a-vis the land and the unexhausted improvem e nts thereon? (iii) Was the 2 nd r e sponde nt a bona fide lessee? A p e rusal of the record of a ppeal showed that the farriily of the la t e W ashing to n Ngosi was living on Farm No . 378a/B/74 Lusaka b e fore the ir h o m est ead was d e molishe d and they were evicted at the b e h e st o f the 2 nd respond e nt . The r e cord of a ppeal also shows tha t the a ppe lla nt's la te fa the r , Mr . Wa shington Ngosi, worked for a c ompany calle d S outh End Prop e rties Li1nite d. The unchalle n ged e vidence , p a rtic ula rly , the a ffid a vit of Olive r J . Irwin showe d tha t the l ate W a shington Ngos i w as a diligent e mployee who w a s r e w a rde d with a pie ce of land by South E nd Propertie s Limite d for his dedicatio n t o duty. The affid a vit a lso s howe d tha t h e w as given J15 (263) the C t·r· er 1 icate of Title to the property but took no steps to have the property registered in his name. The evidence also established that the 2 nd respondent, a church organisation, knew or ought to have known that the appellant and her siblings were in occupation of the property and had in fact made overtures to buy the property from the appellant's family. The 2nd respondent's .overtures were turned down by the appellant's family in a letter dated 13th March, 2003 in which the app e llant's family d enied being squatters. In fact, the 2 nd responde nt admitted in its d e fence that the late Washington Ngosi who was a m e mber of their c hurch, was in occupation of Farm No .378a/B/74 Lusaka, a lbeit as a squatter. The 2 nd respondent's correspondence with the Commissioner of Lands dated 20th February, 2 001 and 20 th February, 2002 referred to Farm ·- No.378a/B/74 Lusaka as undeve loped which was not true because the 2nd r espondent on 22 nd June, 2 003 agreed to compensate the app e llant for the structure that was razed down . We do not believe the 2nd r e spondent's assertion that the land was disused with only a makeshift structure on. We take this position in view of the valuation r eport dated 4 th June, 2004 undertaken at the instance of .. t, J16 (264) the 2nd r d . espon ent showing that there was a dwelling strur.ture on th e land valued at Kl2, 000.00 (rebased) as well as the 2 nd respondent's willingness to compensate the appellant for the demolished structure. The existence of this structure was also confirmed in a valuation report dated 5th August, 2004 undertaken at the instance of the appellant which estimated the value of the buildings to be KlOO, 000 .00 (rebased). When all this evidence is considered, it can be seen that the 2nd respondent was aware of the appellant's prior interest in the land but chose to ignore it by referring to the land as undeveloped in its application for the same piece of land to the Commissioner of Lands. The 2 nd respondent cannot be said to have been an innocent applicant without notice of the appellant's interest in the land. Instead, the 2 nd respondent was an active participant 1n dispossessing the appellant of the property. The facts of this appeal are similar to those in the case of Samba and two others v Paikani Mwanza2 in which the respondent worked for a company called Bonaccord Limeworks Limited in the l 960's. In 1970, the company J17 {265) gave the respondent, as a sign of gratitude, a house and two buildings on Plot number MT 3093, Chiriika, Lusaka. The respondent took up possession of these properties but in 1971, went to live in Kitwe and left the premises under the care of his friend, the first appellant. The respondent intended to obtain title deeds to the properties but he was restrained by the first appellant who advised him that the owners of the premises who were in South Africa were coming back. The respondent later came back to Lusaka from Kitwe and requested the ·first appellant to leave the pre mises. However, the first appellant refused and indicated that he had applied for title d eeds to the property. In that case, we agreed with the d ecision of the learned trial Judge to cancel the appellants' title deeds b ecause they were not genuinely obtained and that the actions of the appellant w e r e fraudule nt. The evidence in this appeal als o shows tha t the 1 s t respondent p erforme d a rather p erfunctory role in the whole matter. To start with, there is no evidence which even remotely suggests that any notice of intention to re-enter w a s s e rved on South End Properties J18 (266) Limited Th · . · ere 1s also no evidence of the notice of intention to re- enter or the certificate of re-entry itself in the record of appeal before us. The 1 st respondent revealed in its defence that it re entered the land on account of non-payment of rent by the title holder. We are hesitant to accept that this was the real reason for t the re-entry in view of the absence of any evidence showing how much was owed. The 1st respondent produced a computer printout to show that title had prope rly passed to the 2 nd respondent. Unlike a certificat e issue d by the Registrar under Section 23 of the Lands and Dee d s Registry Ac t , Chapter 185 of the Laws of Zambia, a compute r print out is n o t con clusive proof of any matter concerning a prope rty . Section 23 ( 1) to (3 ) of the La nds and Deeds Registry Act r e ads as follows: " (1 )Where any p e rson requires a search to be made at the Regis try for e ntries of any matte rs or d ocu m e nts, whereof e ntries are required or allowe d to be m a d e in the Regis try, he may, on p a yme nt of the prescribed f ee, lodge at the Regis try a requis ition in tha t be half (2 )The Regis trar s hall the reupon make the sea rch require d , and s hall issue a certificate setting f orth the result the re of J19 (267) (3 ) In favour of a purchaser or an intending purchaser, as against person s interested under or in respect of matters or documents whereof entries are required or allowed as aforesaid, the certificate, according to the tenor thereof, shall be conclusive, affirmatively or negatively, as the case may be." The computer printout in the record of appeal before us is not sufficient proof that the 1 s t respondent had indeed complied with Section 13 of the Lands Act which reads as follows: "( 1) Where a lessee breaches a term or a condition of a covenant under this Act the President shall give the lessee three months' notice of his intention to cause a certificate of re-entry to be entered in the register in respect of the land held by the lessee and requesting him to make representations as to why a certificate or re -entry should not be entered in the register. (2) If the lessee does not within three months make the representation required under s ubsection (i) or if after making representations the President is not satisfied that a breach of a term or a condition of a covenant by the lessee was not intentional or was beyond the control of the lessee, he may cause the certificate of re-entry to be entered in the register. (3) A lessee aggrie ved with the decision of the President to cause a certificate of re-entry to be ente red in the register may within thirty days appeal to the lands tribunal for an order that the register be rectified." f, J20 (268) When we discussed the effect of Section 13 (2) of the Lands Act in the case of Anort Kabwe and another v James Daka and two others3 , we held as follows at page 17 to18: "The mode of service of the notice of intention to cause a certificate of re entry to be entered in the register for a breach of the covenant in the lease, as provided for in section 13 (2) of the Lands Act, is cardinal to the validation of the subsequent acts of the Commissioner of Lands in disposing of the land to another person. We say so because if the notice is prope rly served, normally by providing proof that this was by registered post using the last known address of the lessee from whom the land is to be taken away, the registered owner will be enabled to make representations, under the law, to show why he should not develop the land within the period allowed under the lease. If the land is eventually taken over because of being in breach, despite the warnings from the Comrnissioner of Lands, the registered owner cannot successfully challenge the action to d eprive him of the land. On the other hand if the notice is not properly served and there is no evidence to that effect, as was the case he re, there is no way the lessee would know so as to make meaningful representations. It follows that a repossession effected in the circumstances whe re a lessee is not afforded an opportunity to dialogue with the Commissioner of Lands, with a view to having an extension of p eriod in which to d evelop the land, cannot be said to be a valid repossession. Jn our vie w, the commissioner of lands cannot be justified in making the land available to another developer. " What we held in the Anort Kabwe and another v James Daka and two others3 case is applicable to the appeal at hand as there is J21 (269) no evidence which shows that South End Properties Limited was properly notified in accordance with Section 13 of the Lands Act. The Commissioner of Lands should have complied with the provisions of Section 13 of the Lands Act by serving the notice of intention to re-enter on South End Properties Limited. This omission was fatal and rendered all subsequent dealings in the land to the detriment of South End Properties and/ or its assignees null and void. The matter does not end there. At the time of the re-entry by the Commissioner of Lands, South End Properties Limited had long divested itself of the property by giving it to the late Washington Ngosi in appreciation of his services. He then died without registering the transfer. The question that arises then is whether or not the appellant, as administrator of his estate can lay claim to it, as she is neither a licencee nor a le ssee. We are of the considered opinion that the appellant can at law lay claim to the land as administrator b ecause the late Washington Ngosi h a d an inchoate interest in the land at the time of his death. At page 886 of Black's • ( J22 (270) Law Dictionary, 9 th Edition, an inchoate interest is described as ((a property interest that has not yet vested." The late Mr. Washington Ngosi had a property interest that was likely to vest but had not yet done so for want of registration. It, therefore, follows that having established that the land had been given to the late Washington Ngosi the · appellant had an inchoate interest in it even though ownership had not changed hands. The fact that the appellant's family lived on this property without any disturbance, coupled with the affidavit of Oliver J. Irwin showed that the late Washington Ngosi was indeed gifted with Farm No. 378a/B/74, Lusaka. The undisputed evidence of the appellant was that the 2 nd respondent has since built a structure on the land. That notwithstanding, the 2 nd respondent was complicit and was to a great extent the author of its own misfortune as it participated actively in the scheme to dispossess the appellant of her land. Any developments carried out by the 2 nd respondent were obviously undertaken at the 2 nd respondent's own risk and cannot be comp ensated for by the appellant. This is in keeping with our , J23 (271) decision in the case of Trevor Limpic v Rachel Mawere and two oth · ers 1n which we refused to award compensation to the appellant for the improvements on the land on account of the fraudulent manner in which the Certificate of Title was obtained. In that case we stated the following at page 828: "Furthermore, we made an order for compensation in a transaction which we, clearly, found to have been fraudulent. This is at variance with our decision in Samba and two others v Paikani Mwanza2 where we declined to award compensation to the appellants for improvements on account that the Certificate of Title was acquired fraudulently ." In view of what we have stated above, we do not agree that the case of Spiros Konidaris v Ramlal Kanji Dandiker1 did not help the appellant's claim for compensation for the demolished house. The appellant's father made developments on the land on the strength of the agreement between him and South End Properties Limited. As far as he was concerned, the land belonged to him . The appellant was therefore justified 1n making the claim for compensation as against the 2 nd respondent. For the foregoing reasons, we allow the appeal and set aside the judgment of the court below with costs to the appellant. The r t ' J24 (272) Certificate of Title issued to the 2nct respondent in respect of Farm No. 378a/B/74, Lusaka is cancelled and the position reverts to the pre re-entry period. In view of the disparity in the estimated value of the demolished str~cture in the two valuation reports before us, we hereby refer the matter to the Deputy Registrar for assessment of compensation for the demolished structure as between the ~ \. appellant and the 2 nd respondent. The respondents shall bear the costs equally. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 41 • • • • • • ♦• H. CHIBOMBA SUPREME COURT JUDGE ... ... -:;~ ......................... . / / ····· . E .. N .. C. MUYOVWE SUPREME COURT JUDGE A. M. WOOD SUPREME COURT JUDGE