Honorius Maurice Chilufya v Chrispin Haluwa Kangunda (SCZ Judgment No. 29 OF 1999) [1999] ZMSC 128 (7 September 1999)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA SCZ TTJDGMENT NO. 29 OF 1999 APPEAL NO. 103 OF 1998- (218) (Civil Jurisdiction) BETWEEN: HONORIUS MAURICE: CHILUFYA APPELLANT AND .; . _(;HR1SPIN-HALUW A K. ANGUNDA RESPONDENT €ORAM: NGULUBE, CJ., MUZY AMBA AND CffiBESAKUNDA, JJS On 1st June and 7m September, 1999 For the appellant: Mr. M. Nyirenda, of°Kafunda and Company For the respondent: Mr; L. M. Matibini, ofMatibini and Company :.; ' JUDGMENT Ngulube, CJ., delivered the judgment of the court. On 1st June 1999 when w~ heard this appeal, we allowed it with cpsts; we order~d that th~ Certificate of Title issued to the respondent must be cancelled; we > • ordered that a 99 year lease and the necessary Certificate of Title must be issued to the appellant; and that the reco~ds at the Lands and Deeds Registry must be rectified accordingly. We said we would give our reasons later, _and this we now do. The action concerned the property known as Lot No. 4, Munkulungwe, situate .. at- Ndo_la. It was not in dispute that the property was first allotted to the appellant Mr. Chilufya on a state lease for fourteen years from first January 1978 and he was issued with Certificate of Title No. 47570. Under the tenns of the lease, the appellant had to , ... ,put up developments of not less than K20,000 (twenty thousand). For ifu part, the , _ state covenanted to come and give Mr .. Chilufya a leas/for 99 years on payment of the survey fees ifhe would not have been in breach of his obligations. ... ·••. . I J2 (219) There was uncontrove~tble and conclusive evidence that the appellant put up ~evelopme~ts worth far more than twenty thousand kwacha, jnfact to the tune of Kl43 million. As the Town Clerk ofNdo)a:' confirmed in a letter dated· 17th Octobe; 1997 to the Commissioner ofLanqs, the appellant has constructed two houses built of concrete blocks and iron roofing sheets; he has installed ZESCO electricity which · cost him K13 million; he has constructed two fish ponds; a_ pump house; a water , •l: • reservoir; a canal and- two wells. The appellant has cleared the land and has been . growing horticultural produce. The appellant was paying ground rent". At the end-of the 14 year lease, the Provincial Lands Officer for the Copperbelt Province wrote to t:pe Commissioner of Lands asking him to ·prepare: a 99 •. years lease in favour of Mr. Chilufya. The foregoing facts were no~ capable · .. of being disputed. Meanwhile, unbeknown to the appellant, the respondent surreptitiously obtained a Certificate of Title No. Ll 719 and a 99 year lease to the same property. He sued the appellant for · vacant possession. The respondent was-assisted in getting this land }?y two officers who shamelessly wrote witruths iti their letters to the Commissioner. of Larids. The I ., Director of Leg11l Services of the . Ndola City Council - (apparently without the blessing of his superior, the Town Clerk who later disowned the falsehoods) - wrote as follows:- " 7th November 1996 Tbe Commission~i; of Lands PO Box 30069 LUSAKA. Dear Sir, MS/lot 4 Munkulungwe .... (220) Re: LOT 4 MUNKULUNGWE: NDOLA Refer to my previous correSJ?ODdence and your subsequent Notice to re-enter the above Lot. -, I wish to inform you that there is no development oil the same even after expiration of your Notice~ Couid·you therefore commence final'-re-entry so·tha~ it.is allocated to a serious developer. Yours faithfully, ~ DIRECTOR OF LEGAL SERVICES " The Senior Registrar.of Lands and Deeds b.ased at Ndola wrote as follows:- ~ . - "17th Decenlb er, 1996. The Commission~r of Lands, Lands Department~ P. O. Box 30069, LUSAKA. "" RE. LOT/4-MUNKULUNGWE-NDOLA C. H. KANGUNDA I have received a representation from Mr. C. H. Kangunda a prospective applicantfor Lot No. 4/M Munkulungwe-Ndola. According to Mr. Kangunda the Ndola City Council had unfairly denied him the opportunity to acquire either ofLots·Nos. 27, 94, 95 and 107 Munkulun~_e by deliberating frustrating bis efforts. ..:: He has shown, me a series ·of correspond,ence from the Ndola City Council . .... · over these Lo~,in which for example Lot 27/Munkulungwe he was even .. ·- . ' . recommended for by the Council but later again fell out of favour and the same went to somebody else. The latest being Lot/4, Munkulungwe W:here the Council is resisting to r.ecommend· him despite having struggled· toJrave the same repossessed with the blessing t4F Ndola City Council. I , i I J4 (221) He now appeals to your good office to exercise its moral authority to prevail over the Ndola City Council by ignoring procedural requirements under Land Circular No. 1 of 1985 and offer the same to him. ~ . . All relevant correspondence are herewith enclosed for your perusal. SENIOR REGISTRAR OJ? LANDS AN)) DEEDS ND0LA-COPPERBELT PROVINCE " What the Director of Legal Services said was a lie and, as the learned trial judge . . properly found~ no notice was· infact given to Mr. Chilufya. What the Senior Registrar wrote clearly established the fraudulent nature of the subterranean manoeuvres: the respondent and his accomplices were engaged iu. He counselled that the procedural requirements be ignored; and they were indeed ignored. The learned trial judge considered that, because the respondent had been give11 a Certificate of Title, this was conclusiv;e of his title under S.54 of the Lands 'and Deeds Registry Act, CAP. 185·which reads-_:-- . ~ "54. Every Provisional Certificate and every Certificate of Title, duly authenticated under the hand and seal of.the Registrar, shall be received in all courts of law and equity as evidence of the partitulars therein set forth or endorsed thereon, and of their being entered• in the Register, and shall, unless the contrary is proved by the product;ipn.of the Register or a copy thereof certified under th·e hand and seal of the Registrar, or unless the rectification of a Provisional Certificate is ordered by the Court, be conclusive .evidence that the person named· in. such Provisional: Certificate or Certificate of {. Ti tle, or in any entry tliere-00, as seised of or as taking estate or interest -::\<, ... in the land therein described is seised or possessed of such land for the estate or interest therein specified· as from the date of such Certificate or · ··as from the date from which the ,same is expressed to take effect, and that such Certificate has. been duly issued. II '" . .: · .. The learned trial judge considered that the appellant's lease' had expired and that accordingly, it was immaterial that he had not been no.tified of the moves to JS (222) dispossess him. He considered-that the appellant was· only entitled to compensation in resp'ect of the imexhausted improvements he had effected. In our considered opinion, the learned trial judge seriously misdirected himself f "in approaching the·matter·this way. S. 54 of CAP. 185 .does not authorise fraud and what happened here was clearly a fraud on the appelhmt. As a matter of fact, the·· effect of the issue of a Certificate of Title,is aptly dealt with in Section 33 of CAP .185 which reads--- "33. A Certificate of Title shall be conclusive as-from the date of ,. its issue and upon and after the issue thereof, notwithstan,ding with existence in any other person of any estate or interest, whether · -~; derived by grant from the President or otherwise, which but for Parts III to VII might be held to be paramount or to have priority: the Registered Proprietor of the land comprised in such Certificate shall, except in case of fraud,-h·old the same subject only to such encumbrances, liens, estates·or interests as may be shown by such Certificate of Title and any encumbrances, liens; estates or interests created after the issue of such Certificate as may be notified on the folium of the Register relating to such land but absolutely free from all other encumbrances, liens, estates or interests whatsoever: (a) (b) · (c) Except tbe estate or interest of a proprietor claiming the same land under a current prior Certificate of Title issued under the provisions of Parts III to VIi; ~ud Except so far as regards the omission or misdescription of any right of way or other easement created in or existing upo~ any land; and Except so far as ,regards any portion ofland that may be erroneously included in the Certificate of Tijtle, evidencing the 'title of such Registered Proprietor by wrong description·,- of parcels or of boundaries." - . - The law thus contemplates that fraud will vitiate the Certificate. A major drawback in the ap.proach adopted below was that the learned trial' 'judge made a fundamental mistake in treating a state lease of land which cbnferred ownership or proprietorship and title and which obliged the lessee to develop the land as if it were an ordinary (223) landlord and tenant lease for a term certain which then simply expires by effluxion of time. The lease here did not and could not terminate automatically and it conferred ., rights at expiry under the state's. covenants under the lease and, above all, by statute: To wit, the appellant had to get a 99 yea:r lease as of.ri~ht unless there was major default. It is· unthinkable .:. since most land was converte·d to leasehold - that at the end -~:. /Tl' of the various leases, owriers of property who have invested and developed them can come and lose these at the mercy and whim of officials of the state. The learned trial judge made no reference whatsoever to Section 10 ofthe . . Lands Act, CAP. 184, which clearly applied. Section 10 reads---- "10'. (1) J:'he Presidentsball renew a lease, upon expiry, for a further term not exceeding ninety-nine years if he is satisfied that the lessee had complied with or observed the terms, conditions. or covenants of the lease and the lease is not liable to forfeiture. (2) If the President does not renew a lease the lessee shall be entitled to compensation for the improvements made, on the land in accordance with the procedure laid down in the "Lands (Acquisition) Act." ~: · '.':' .. We have not forgotten the valiant effort'put up by Mr. Matibini who tried to defend the argument below that the fo,urteen year lease simply lapsed or expired. We still recall his attempt to persuade us to. presume that there must have been the relevant bre~ch of covenant on the part of the appellan~ _which enabled the Commissioner of Lands to ex~rcise his di;ci~tio~ by r~-entering ·and re•allo_cating the land. These arguments atid submissions flew in the teeth of the law and· the clear facts. There was ' in this case a very crude fraud and' the result of the appeal already announced was inevitable. / J7 (224) It was fot the for~gQi;ng reasons that we allowed the appeal,: with costs to the appellant botii here an<lbelo~. to be t~ed if not agreed . ·-1: . . . . . . . . . . . . . . . . . . . . . . . . . . . . •.• ... ··• .... · .... M. M. S:W·: Ngulu~e: CHIEF JUSTICE . .. ..... . . W . M. Muzyamba ~. SUPREME COURT JUDGE. L. P. Chibesakunda· SUPREME COURT JUDGE. -..