Ison Sichimata v Siame and Ors (Appeal 146 of 2002) [2003] ZMSC 104 (24 July 2003)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 146/2002 (Civil Jurisdiction) BETWEEN: ISON SICHIMATA AND AMONSON SIAME LASTONE SICHALWE SHADWELL SIAME APPELLANT 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT Coram: Lewanika, DCJ, Chibesakunda and Silomba, JJS on 3rd December 2002 and 24th July 2003 For the Appellants: For the Respondent: Mr. C Magubbwi of Lloyd Siame and Company Mr. V K Mwewa of Messrs V K Mwewa & Company JUDGMENT Chibesakunda, JS, delivered the Judgment of the Court Legislation referred to: 1. The Lands Act, Cap 184, Section 3 (4). Cases referred to: 1. Siwale vs Siwale - SCZ Appeal No. 24 of 1999. 2. Mupwaya vs Mbaimbi - SCZ Appeal No. 41 of 1999. 3. Still Water Farms Limited vs Mpongwe District Council, Commissioner of Lands Dawson Lupunga and Bautis Kapulu Appeal No. 90/2001 unreported case. In this appeal the Respondents who were the plaintiffs in the court below obtained judgment in their favour in a suit in which they claimed for:- a) An order and declaration that the purported Certificate of Title issued to the defendant in respect of Farm No. 6318, Nakonde is null and void for failure to comply with the required procedure in obtaining the title; b) For a further order that the farm and/or land in question belongs to the plantifFs herein and the entire Namulinda Village; c) An order for the revocation of the said certificate issued to the Defendant; and d) Costs. The land in issue for which the Appellant had obtained certificate of title was part of the land belonging to Namulinda village in Chieftainess Nawaitwika’s area Nakonde, Northern Province, until it was sub-divided and a portion of which alienated to the Appellant. The High Court held that the purported alienation of land was null and void, as the alienation was not done in accordance with Section 3 (4) of the Lands Act Cap 184. The Appellant aggrieved by this decision has now appealed to this court. The case for the Respondents before the High Court was that they were villagers in Village Namulinda. They had lived in that village from time immemorial. The three Respondents had lived in that village even before the Appellant came to that village in 1986 and they were members of the village committee together with the other villagers, such as Cyrus Sinkala, Whiteson Sinkala, Rodson Sinkamba, Wedson Sinkamba and Hamiton Sinyanga. Their case is that one of the functions of this village committee was to receive applications from possible purchasers of the customary land held under customary law and then to approve the applications. The Committee was supposed to then after approval give a letter to the successful applicants to take the letter of approval to the Chief. The Chief was then supposed to give them a letter of recommendation for onward transmission to the Ministry of Lands for the Ministry to issue a certificate of title. Their evidence before the court was that the land in issue was part of the land the village used, for growing food, for grazing cattle and fetching wood for energy. Their evidence also is that when the Appellant first came to the village in 1986 he approached the 1st Respondent who was the headman at that time asking for a piece of land on which to cultivate food for his family's consumption. The 1st Respondent allocated the Appellant a piece of land for the Appellant’s family sustenance. Strangely enough the Appellant then started exercising powers, over this piece of land which he was not supposed to do. For example, he started chasing would be passersby as intruders on his land. It is their case that he even used to threaten the passersby with a gun. They denied that the Appellant’s application was to purchase the land in question and that the committee ever discussed that possibility. According to them the village committee never approved the purchase of that land by the Appellant. PW3 Nelson Sinmokonda denied ever sitting on the committee, which approved the alienation of that portion of land to the Appellant. The Respondents' further evidence is that later they discovered that the Appellant had quietly obtained a certificate of title. They then wrote to the Permanent Secretary, Northern Province, Kasama, protesting about this turn of events. He referred them back to Nakonde District Council to find out who had authorized the Appellant getting a certificate of title. The Respondents' case was that neither Chieftainess Nawaitwika, nor Nelson Sichimata had any authority to alienate any piece of the land held under customary law, for that land was used by the villagers for day-to-day needs. They testified that this usage of land had gone from time in memorial and that any alienation would cause immeasurable damages to the villagers. The Appellant’s case was that he came to the village in 1986. When he came to the village PW3 was village captain and that as soon as he came to the village he approached Solomon Siame seeking to get an allocation of land for his sustenance. Solomon Siame gave him a piece of land - 5 kilometres from the village on which to settle. According to him this allocation was done in consultation with other members of the village committee. Later he obtained from the same consultative meeting a letter of approval of the allocation of this land, which he took to Chieftainess Nawaitwika who then inspected the land in question and then again in consultation with the committee on which the District Secretary sat gave him a letter of recommendation to take to Nakonde District Council. When he took this letter to Nakonde he was then subsequently issued with a certificate of title. He testified that when this land was allocated to him the 1st Respondent was not headman. He also testified that the 1st Respondent did not attend the meeting at which he was allocated this land but that PW3 Nelson Simukonda who was village captain attended the village meeting in question. He denied the assertion by the Respondents’ that the land in question was used by other villagers for daily needs. Mr Magubbwi, learned counsel for the Appellant, filed two grounds of appeal namely that:- a) The Lower Court erred in fact when it held that the alienation of the Land in issue to the Appellant without consulting the Respondents herein and the other villagers who were interested parties and were affected by the grant was fatal in terms of Section 3 (4)(c) of the Land Act and the consequent orders thereof; and b) The Lower Court erred in fact and law when it stated that due to the size of the Land it was imperative to consult the villagers before such a large piece of land was removed from their land. He elaborated and submitted that it was a misdirection on the part of the lower court to have held that the alienation of land in question was null and void in breach of Section 3 of the Lands Act. His subsidiary argument is that the learned trial Judge seemed to imply that the Appellant had a duty to consult any body whose interest would be affected. He argued that that is not so at law. It is not the duty of the Appellant to consult everybody whose interest would be affected. According to him there are three pre conditions for proper alienation of the land held under customary law; and these are:- a) The President cannot alienate any land situated in a district or an area where land is held under customary tenure without taking into consideration the local customary law in land tenure which is not in conflict with this Act; b) The President cannot alienate any land situated in a district or an area where land is held under customary tenure without consulting the Chief and the local authority in the area in which he land to be alienated is situated, and in the cases of a game management area, and the Director of National parks and Wildlife Service, who shall identity the piece of land to be alienated; and c) The President cannot alienate any land situated in a district or an area where land is held under customary tenure without consulting any other person or body whose interest might be affected by the grant. His argument is that the Appellant complied with all these requirements stipulated in Section 3 (4) of the Lands act. His submitted that there were consultations with the village headman, village committee and that those who gave evidence before the court are not the ones he consulted. Mr Mwewa supported the learned trial Judge and argued that the lower court, which had the benefit of looking at the demeanor of witnesses both for the Appellant and the Respondents, chose to believe the Respondent's witnesses and rejected the evidence of the Appellant, which the court was perfectly entitled to do. We have seriously looked at the record before us and also submissions made by the two learned counsel. We are well satisfied that the facts before the court were fairly straightforward. It was common ground that the land in question was held under customary tenure. It was also common ground that the Appellant came to this part of Zambia in 1985/86. It is also common ground that the land in question had to be only alienated in total compliance with Section 3 (4) of the Lands Act. And the story, which the learned trial Judge chose to accept is that, the Appellant failed to obtain approval of the allocation of land from the village committee. The Appellant failed to obtain this approval contrary to Section 3 (4) of the Lands Act. We agree with Mr Magubbwi that Section 3 (4) spells out conditions which go with proper alienation of land held under customary law. The Appellant failed to satisfy one of these conditions, namely to obtain approval of all those whose interests were likely to be affected. This case is on all fours with the - Siwale vs Siwale (1), Mupwaya vs Mbaimbi (2) and a recent unreported case of Still Water Farms Limited vs Mpongwe District Council, Commissioner of Lands, Dawson Lupunga and Bautis Kapulu (3) in which we held that such alienation was null and void. Applying that same approach we find that the lower court was on firm ground in rejecting the claim. We cannot fault the learned trial Judge. We find no merit in the appeal. We dismiss the appeal with costs. D. M. Lewanika DEPUTY CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE S S Silomba SUPREME COURT JUDGE