Josephat Chasaya v Ataur Rahaman Chodhury (CAZ APPEAL NO. 78/2017) [2020] ZMCA 202 (15 December 2020)

I I IN THE COURT OF APPEAL OF ZAMBIA CAZ APPE,AL NO. 78/ 2017 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: JOSEPHAT CHASAYA APPELLANT AND ATAUR RAHAMAN CHODHURY RESPONDENT CORAM: MAKUNGU, KONDOLO SC, MAJULA JJA On 21 st February, 2018 and on .!.'i ... December,. 2.020 ht For the Appellant .· Mr. Mainza of Messrs Mainza & Co. For the Respondent : Mr. Simbao of Messrs Mulungushi Chambers JUDGMENT KONDOLO SC, JA, delivered the Judgement of the Court CASES REFERRED TO: 1. Cavm.ont v Lewis Nathan SCZ Judgment No). 6 of 2016 2. Ndongo v Moses Mulyango, Roostico Banda SCZ Judgment No-.4 of 2011 J2 of 30 3. Judith Mporo,koso v Kerries Mumbi Selected Jud,gment No. 19 of 2012 4. Ginty v Belmont Building Supplies (1959) ALL ER 44 5. Kalyoto Muhalyo Paluku v Granny's Bakery Limited, lshaq Musa, Attorney General and Lusaka City Council (2006) Z. R. 6. Base Chemicals Zambia Limited v Zambia Air Force, the Attorney General SCZ Judgment No. 9 of 2011 7 . Prisca Lubungu v Obby Kapango and others, Ndola City Council SCZ Appeal No. 216/2016 8. Binwell Siame, Lomanze Banda v Regina Chapitambili CAZ Appeal No. 22/2019 (Oct 2019) 9. Maggie Mulela v Alick Kaira CAZ Appeal No. 72/2017 LEGISLATION REFERRED TO: 1. The Rules of the Supreme Court 1999 Edition ("White. Book") 2. The Lands and Deeds Registry Act, Chapter 185, Laws of Zambia 3. The Property Transfer Act, Chapter 340, Laws of Zambia 4 . The Income Tax Act, Chapter 323, Laws of Zambia 5 . The Court of Appeal Rules Statutory Instrument No. 65, Laws of Zambia This is an a ppeal against th e Decision of Mapani-Kawimbe J in which th e Respondent wa s d eclared the legal owner of Lot No. 14592/M. Lusaka a n d the Appella n t ordered to vacate the said p roper ty. Jr3 of 3 0 The matter was originally commenced by Originating Su mmons under Order 113 of the Rules of the Supreme Court 1999 (the "White Book") but when it came up for hearing before Mulongoti J, as she then was, she found the matter suitable for trial and ordered that it proceeds as though commenced by Writ of Summons. The brief facts are that on 21 st December, 2012 Ataur Rahaman Chodhury, who was the Plaintiff in the Court below (the Respondent herein) executed a contract of sale with John Mafuta and Chrispin Shachibamba (the Administrators of the estate of Enala Mutonyo) to purchase the subject land at the cost of ZKlS0,000. He paid a deposit of Kl0,000 upon signing the contiract of sale. The Respondent was issued with a Certificate of Title in 2014. He alleged that th e Appellant was trespassing on his property and had illegally erected s tructures. Josephat Chasaya, the Defendant, in the Court b elow (The Appellant herein) denied occupying the land illegally and claimed that he too had purchased the same piece of land from John Mafuta. He said a Contract of Sale was executed on 28th February, 2013 with an agreed initial purchase price of K68,000 to be paid in insta lments. That K72,000 had been paid and John Mafuta had failed to collect the balance of K4,000. J4 of 30 The Defendant set out particulars of fraud in this matter. It was aUeged that the Plaintiff fraudulently bought the land from Justin Mafuta sometime in April, 2013 after the Defendant Appellant had already purchased it and the Plaintiff actually paid the sum of K230,000 but only declared the value of KlS0,000 to the Zambia Revenue Authority ('". ZRA"). It was the Defendant's view that he retained an equitable right in the land because he had paid for it and was the ref ore legally on the property. He further, alleged that Justin Mafuta and his family forged his signature on a false document they drafted which stated that he had agreed to be relocated to another piece of land. The Defendant further averred that the Plaintiff was a foreigner who had no right to own land in Zambia and for the given reasons, he counter claimed for a declaration that the sale to the Plaintiff was subject to the Defendant's equitable rights. He further sought declarations to render the purchase of the land by the Plaintiff null and void on account of fraud and that being a foreigner with no investment license or presidential consent, he was not eligible to own land in Zambia and that the Title Deeds issued to him be cancelled. Lastly, a declaration that the Defendant was the owner of the land. JS of 30 At trial, it became apparent that Justin Mafuta (PW3) had sold the plot to not only the Plaintiff and the Defendant but also to a third person a Mr. Kayumba. He admitted that his actions were fraudulent and that he had only repaid Kayumba whilst the Defendant declined to accept an alternative piece of land. The Plaintiff stated that he had no prior knowledge of the Defendant's interest in the land in 2014 after he had already obtained the Certificate of Title. With regard to his eligibility to own land in Zambia, the Plaintiff simply stated that he did not know the procedure to be adopted by non-Zambians. He admitted that the total sum of money paid to the vendors was K230,000 and that the contract of sale only made mention of 5.5 hectares, his Certificate of Title indicated 7. 7 hectares because he bought the additional 2 hectares from Mr. Nalikena even though there was no evidence on record of such purchase. The trial Court identified and narrowed down the issue for determination, as being, whether or not the Respondent's Certificate of Title could be ca n celled on account of fraud. She found that the Appellant abandoned his allegation of fraud beca use he led no evidence to prove any fraud in the way the Title was acquired from the Ministry of Lands and given the fact that PW3, Justin Mafuta, admitted to having sold the land fraudulently, the remedy lay against him. Further, that the Defendant had produced no evidence to prove that the transaction was underdeclared to ZRA and the Ministry of J6 of 30 Lands. The learned trial Judge stated that the Plaintiff was not disqualified from owning land simply because he was a legal resident and found that he could own land provided, he met all the statutory requirements. Against this backdrop, the lower Court found that the Plaintiff was the legal owner of Lot No. 14592/M Lusaka and ordered the Defendant to vacate the property. Disgruntled by the decision of the High Court, the Defendant, now the Appellant, has assailed the Judgment on four (4) grounds, namely: 1. The Court below erred in law and fact when it held that the Appellant abandoned his allegation of fraud against the Res.pondent when the Appellant raised the issue of fraud which was pleaded in his Defence and Counter Claim. 2. The Court below erred in law and fact when she held that there was no evidence called by the Appellant to J7 of 30 prove the under declaration of the transaction to Zambia Revenue Authority and the Ministry of Lands when the evidence before the Court clearly showed that the property was valued at ZMWlS0,000, but the Respondent paid the vendors ZMW230,000 for the purchase of the said property and there was overwhelming evidence on record that the property was undervalued. 3. The Court below erred in law and fact when she held that the Respondent a Bangladesh national and resident in Zambia can own land as long as he meets all the statutory requirements, when the Respondent did not produce evidence in writing from the President of the Republic of Zambia to show that he had obtained permission in writing from. the President of the Republic of Zambia to own land as a non-Zambian. 4. The Court below erred in law and fact when she held that the Re.spondent had a legal right in the land without considering the fact that a non-Zambian cannot own land unless he. obtains written permission from the President of the Republic of Zambia which evidence the Respondent failed to produce in the Court below. JS of 30 The Appellant's argument in ground one was that he did not abandon his allegation of fraud against the Respondent. He pointed out that his evidence showed that he was not party to the relocation agreement. He added that the contract of sale between the Respondent and Justin Mafuta showed the purchase price as Kl 50,000 but the acknowledgment receipt showed the sum of K230,000 thus indicating that fraud was present. Further, that the Respondent failed to produce an application for consent to assign and proof of payment of property transfer tax which proves that the Title was fraudulently obtained. It was argued that these particulars show that not only was the allegation of fraud pleaded but viva voce evidence was also led to support the allegation. We were u rged to reverse the lower Court's finding in this regard. The Respondent did not dispute that the relocation agreement was forged but submitted that the Appellant failed to impute knowledge of forgery on the Respondent. The Respondent relied on Base Chemicals Zambia Limited v Zambia Air Force, The Attorne y J9 of 30 General (6 l and submitted that evidence must be led to establish fraud. The Appellant, by only drawing the attention of the Court to his evidence that he was shocked to see the relocation agreement which he was not party to, was not clearly and distinctively leading evidence of the alleged fraud. With regard to the amount of K230,000 paid to the vendors, the Respondent's stance was that he proved his case in the lower Court that the purchase price was K150,000 while the payment of KS0,000 was made to help the vendors with their personal problems. Further, the Appellant was not privy to the contract of sale or the acknowledgement receipts. That the burden of proof therefore shifted to the Respondent to prove that the K230,000 was the purchase pnce. In ground 2, the Appellant held the view that in light of the Respondent's admission that he paid K230,000 coupled with the acknowledgment receipt at page 214 of the record whilst the printout at page 223 of the record and the contract of sale both show that he paid K150,000 which was an under declaration, the trial Judge's finding that no evidence was called to prove the under-declaration of the transaction to ZRA and the Ministry of Lands was perverse. JlO of 30 It was further argued that no evidence or information other than that contained in a document should be relied on. To buttress this argument, the case of Cavmont v Lewis Nathan (11 was called in aid, in which it was stated that the duty of the Court is to interpret the document within its four corners and not in light of or in conjunction with evidence of the Plaintiffs witness. The trial Court failed to interpret the three documents within their four corners, had she done so she would have found that an under declaration was established. In responding to this ground, the Respondent drew our attention to Section 10 of the Property Transfer Act which provides for objections relating to a determination or assessment made under the Act as read together with Sections 106 to 111 of the Income Tax Act which set out the procedure to be adopted by affected persons. It was in this vein submitted that the Appellant did not engage the Commissioner General setting out his ground of objection and neither did he appeal to the Appeal Tribunal. It was submitted further that the ZRA does its own assessment of the value a nd it therefore Jll of .30 does not lie with the Appellant to dispute the value. ln any case., if indeed the property was undervalued, the ZRA would impose the proper value and not vitiate the contract. Other than reproducing Ground 3, the Appellants Heads of Argument provided no arguments in relation to the ground. The gist of ground 4 was that Section 3 of the Lands and Deeds Registry Act [sic] provides ways in which a non-Zambian can own land which includes; an individual being a permanent resident, an investor or has obtained the President's consent in writing under his hand . From the bundles of documents on record, it was pointed out that there was nothing contained therein that demonstrated that the Respondent was qualified under the Act. That the finding of the trial Judge that the Respondent could own land in Zambia as long as he met the statutory requirement was highly perverse. That the document the Respondent sought to rely on, at page 150 of the record clearly shows that it was neither a resident permit nor an Investor's permit but a self-employment permit and/ or director's permit. The Appellant placed relia nce on the cases of N dongo v Moses Mulyango, Roosti,co Banda (21 and Jl2 of 30 Kalyoto Mubalyo Paluku. v Granny's, Bakery Limited, Ishaq Musa, Attorney General and Lusaka City Council (51 in which the attendant section was the subject of discussion. He submitted that the Respondent's failure to comply with the said section was fatal and as such his Certificate of Title should be cancelled. The Respondent argued grounds 3 and 4 together and simply submitted that Section 33 of the Lands, and Deed Registry Act, provides that a Certificate of Title once issued, is conclusive unless fraud is proven. It was submitted that the Respondent had established that he was a resident and the lower Court was therefore on firm ground when it found that he could own land as long as he met the statutory :requirements .. The Appellant argued an additional ground 5 in which it was submitted that the trial Judge erred in law and fact when she failed to make a find ing that there is undisputed evidence on record that the appeDan t wa s the first to create an interest on Lot 14592/M Lusaka. That there was documentary evidence on record and a confession by the vendor to the effect that the Respondent was a new purchaser and Appellant an old purchaser and that the vendor even attempted to relocate the Appellant. Jl3 of 30 It was the Appellant's position that the acknowledgment receipt dated 16th May, 2014 showed that the vendor had received K230,000 declared to have sold the land and had no further claim to it. The Appellant submitted that this document confirmed that the sale was done in May, 2014 whereas the sale to the Appellant was done on 28th February, 2013. It was pointed out that the vendor's (PW3) evidence appearing at page 267 of the record of appeal shows that he gave consent to the authorities to process title deeds for the Appellant. The Appellant relied on the case of Judith Mporokoso v: Kerr.ies Mumbi (3 ) in which the Supreme Court nullified a later offer. We were directed to the relocation agreement which in the Appellant's view showed that by making reference to a "new location" it followed that there was an old location and as such it can be inferred that the Appellant was at Lot 14592/M at all material times. Further, it was argued that the fact that he paid a lower price for the land showed that it was offered to the Appellant before the Respondent because it was inconceivable that his purchase price Jl4 of 30 would have been lower than that offered to the Respondent if the land was offered to the Respondent earlier than it was offered to him. He opined that the letter of sale dated 2012 was a mere mechanism to deprive the Appellant of the subject property after the Respondent offered a more lucrative amount of K230,000. Furthermore, there was undisputed evidence that the Appellant put up structures at the property and the question that begs an answer is where were the vendors and the Respondent at the time. It was submitted that the Respondent involved himself in a shrewd transaction with the vendors and therefore ought not be allowed to obtain advantage, the case of Ginty v Belmont Building Supplies (4t was cited. The Appellant did not commit any fraud and therefore must not be deprived of his legal right. In Response, the Respondent was of the view that since no ground five was filed, it could not be argued. At the hearing, Counsel for both parties augmented their filed heads of argument with oral submissions. Mr. Mainza on behalf of the Appellant augmented grounds 3 and 4. He submitted that at page 69 of the record of appeal, the Respondent had described himself as J15 of 30 a Bangladesh citizen resident in Lusaka. That the Respondent therefore falls into the category of non-Zambian individuals and he cited the Supreme Court case of Kalyoto Muhalyo Kalutu v Granny's Bakery Ltd, Ishack Musa & The Attorney General !5) where it was stated as follows; "3. A non-Zambian individual can own land in Zambia. if he is a permanent resident; is an investor or· h.as obtained the presidents consent in writing." Mr. Mainza pointed out that the Respondent merely had an Entry Permit which only allowed him to work in Zambia as a Director and he had not completed 4 years to become a permanent resident. That the Respondent relied on the Resident Permit issued to h im by the Immigration Department on 5 th June, 2012 found at page 207 of the record of appeal. That the Respondent's contract of sa]e for the purchase of land was executed 6 months after obtaining an Entry Permit and he purported to buy the land in question in November, 2012 in violation of the law. It was submitted that the trial Court misdirected itself at page 33 of lines 15-17 and page 34 lines 1-2 of the record of appeal when it J16 of 30 held that the Respondent was not disentitled from owning land just because he hailed from Bangladesh and only resident in Zambia so long as he can meet the statutory provisions. Mr. Mainza argued that there was no clear evidence of written consent under the hand of the President. He further submitted that in the Kalyoto Muhalyo Kalutu Case i(Supra) a Certificate of Title had been issued and the Supreme Court ordered that it be cancelled. He opined that this is a proper case which calls for the Court to intervene as there was a clear misdirection. On behalf of the Respondent, Mr. Simbao reiterated that the Respondent has a Certificate of Title and section 33 of the Lands and Deeds R,egistry Act requires this Court to presume that the Certificate is valid until t he contrary is proven. He further submlitted that the Commissioner of Lands acts on behalf of the President and is presumed to know the law which he administers and it must be presumed by this Court that all the required formalities were complied with before the issuance of that Title. J17of30 That if the Appellant had issue with regard to the Respondent's eligibility to own land, the burden of proof rested entirely on him to prove that the Respondent was not eligible. He submitted that either the Attorney General or Commissioner of Lands should have been called as a witness to testify on how this Title was issued. He accused the Appellant of trying to shift the burden of proof to the Respondent and he recalled the maxim, 'he who asserts must prove.'' Mr. Simbao supported the trial Court's assertion that it was not always illegal for a non-Zambian to own land and there was no evidence to show that the correct procedure was not followed. We reminded Mr. Simbao that his client's evidence was that he did not know the procedure by which foreigners could own land in Zambia which might be an indication that he didn't apply for consent. He replied by stating that it is the lawyer who does the conveya nce and the Appellant still had the burden of proving that the Certificate of Title was illegally issued. He distinguished the Kalyoto Case from this case on the basis that in the former, the Attorney General was a p a rty to the proceedings and he led evidence which is not what happened in casu. J18 of 30 Mr. Mainza rejoined that in the Court below, the proceedings were commenced by the Respondent who was claiming to be the Registered Owner. He was therefore under an obligation to prove how he owned the land and he cited the case of Khaled Muhammed a s being instructive. He further submitted that numerous certificates of title have been cancelled by the Courts despite the Commissioner of Lands being presumed to know the law. He stated that section 3 o,f the Lands Act sets out guidelines on how foreigners are to acquire land and the issue of eligibility has nothing to do with fraud. We are grateful to Counsel for their spirited arguments both in writing and verbal. We have also considered the record of appeal including the impugned Judgment. The memorandum of appeal filed on 9 th May, 2017 contained only four grounds of appeal but the appellants heads of argument filed on 10th July, 2017 included a fresh ground numbered as ground 5 . At the hearing, Mr. Mainza argued ground 5 by relying on the filed heads of argument augmented by verbal submissions. Mr. Simbao offered no arguments in rebuttal but simply stated that as far as he was concerned, there was no ground 5 before the Court. According to the Court of Appeal Rules, the general rule is that grounds of appeal should be stated in the memorandum of appeal. Order 10 Rules 9 (3) and (4) state as follows: Jl9 of 30 (3) The appellant shall not thereafter without the leave of the Court put forward any grounds or objection other than those set out in the memorandum or appeal, but the Court in deciding the appeal shall not be confined to the grounds put forward by the appellant. (4) The Court shall not allow an appeal on any ground not stated in the memorandum of appeal unless the respondent, including any person who in relation to such ground should have been made a respondent, has had sufficient opportunity of contesting the appeal on that ground. The position is therefore that where a party has been given sufficient opportunity to contest a ground of appea l, such ground may be allowed to grace the record. This may arise where the Appellant has not set out the ground of appeal in the memorandum of appeal but has set out and argued the ground in heads of argument filed before Court and served on the Respondent. J20 of 30 We observe that the said ground 5 was clearly set out in the Appellant's heads of argument. The arguments upon which the ground is founded are clearly stated and the said heads of argument were served on the Respondent. Mr. Simbao's reaction implies that as far as he is concerned, if a ground of appeal is not set out in the memorandum of appeal, it cannot be argued. In our view, ground 5 was brought to the Respondent's attention when they received the Appellant's heads of argument. This situation arose in this Court in the case of Maggie Mulela 'V Alic.k Kaira(9l where we allowed arguments advanced under grounds of appeal which were not set out in the memorandum of appeal but were argued in the Appellant's heads of argument. We see no reason for refusing to entertain the said ground 5 and shall therefore consider Counsel for the Appellant's arguments in that regard. Grounds 1, 2 and 5 shall be considered together because they all address the factors upon which the Appellant based his claim of ,. J21 of 30 fraud as well as a claim to nullify the Certificate of Title issued to the Respondent. It is not in dispute that the Appellant was not a party to the relocation agreement and that his signature on it was forged (see page 227 of the record of appeal). Further the contract of sale between the Respondent and Justin Mafuta which represented the purchase price as K150,000 conflicted with an acknowledgment receipt of K230,000. These two factors, according to the Appellant both revealed that fraud was present. He went on to argue that the failure by the Respondent to produce an application for consent to assign, the actual consent to assign and proof of payment of property transfer tax show that the Title was fraudulently obtained. The Respondent did not dispute the existence of the relocation agreement but argued that the Appellant failed to impute knowledge of forgery on the Respondent and by failing to do so fell short of the requirement to prove the fraud as alleged. It was further argued that the Appellant not being privy to the contract between the Respondent and the vendor, it was incumbent on him to prove that the K230,000 paid was actually the purchase price. The trial Judge dismissed the (. J22 of 30 claim on the basis that the AppeHant had failed to lead evidence against the Respondent for fraud. The trial ,Judge, however noted that the claim for fraud was best suited against PW3 whom the Appellant proved had acted fraudulently and not the Respondent. Having considered the evidence led before the trial Judge, we agree with her findings, that no fraud was proved against the Respondent and the daim for fraud only touched PW3 who in fact admitted that he acted fraudulently. The Appellant raised issue with the amount of money paid by the Respondent to PW3 which culminated into the sale of the property. Our mere response is that the contract of sale must be read within its four corners and even if the K80,000 paid over above the K150,000 was actually part of the purchase price, the Contract of Sale between the Respondent and PW3, dated February, 2012, did not indicate that it would constitute part of the payment. A thorough examination of the Acknowledgment receipt at page 90 of the Record, indicates that Justin Mafuta and Chrispin Siachibamba on 16th May, 2014 received full payment for the sale of Lot No. Ll4592/M amounting to K230,000 and by receipt of the said J 2 3 of 3 0 sum declared that they h ad sold the said piece of land to the Respondent. A large part of the Appellant's argument rests on his conclusion that when this document is read together with the contract of sale, it is clear that the property's value was u nderdeclared for tax purposes and this shows that the title was fraudulently obtained. We are inclined to agree with the Respondent that where a question arises with regard to an alleged undeclaration of tax or over evaluation of the tax payable on property transfers , the same must be handled by the ZRA first and the Courts later, if at an. This factor alone cannot be used as a basis to cancel a Certificate of Title that has been issued by the Ministry of Lands. We are cognizant of Section 33 of the Lands and Deed Registry Ac t which makes a Certificate of Title conclusive proof of ownership from the date of its issue and upon and after the issue thereof, notwithstanding the existence in any other person of any interest, whether derived by grant from the President or otherwise . To emphasize this position, Section 54 of the Lands and. Deeds. Registry Act provides follows: 54. Every Provisional Certificate and. e;very Certificate J2:4 of 30 of Title, duly authenticated under the hand and seal o.f the Registrar, shall be received in an courts of law and equity as evidence of the particulars t he·rein set forth or endorsed thereon, and of the.ir being ente.red in the Register, and shall, unless the contrary is proved by the production of the Registeir or a co,py thereof certified under the 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 P'rovils.ional Certificate or Certificate of Title, or in. any entry thereon, as seised of or as taking es.tate or interest in the land therein described is seised or poss,essed of such land for the estate or· int.ere.st therein specified as from the date of such Certificate o,r as from the date from which the saine is. express.ed to take effect, and that such Certificate, has been duly issued. J 2 5 of 30 The said provision was cited in the case of Prisca Lubungu v Obby Kapango and others, Ndola City Council 17) in which the Supreme Court emphasized that it is incontrovertible that a Certificate of Title is evidence of proprietorship of the land to which it relates and also made reference to Section 33 of the Lands and Deeds Regis.try Act.. From the above authorities, a certificate of title can only be invalidated where fraud or impropriety is proved and the cases cited by Counsel for the Respondent show the correct position of the law that fraud, in civil matters, must be proved beyond the normal standard of a balance of probabilities. The absence on the record of the consent to assign and the other documentation referred to by the Appellant, does not automatically invalidate the issuance of the Certificate of Title. We see no reason to depart from the trial Judge's finding that fraud was not proved. Grounds 1, 2 and 5 are consequently dismissed. The remaining grounds 3 and 4 both attack the finding of the trial Court that the Respondent, being a Bangladesh citizen was eligible to own land in Zambia. The argument is based on Section 3 of the Lands Act which provides circumstances under which a non Zambian is capable of owning land. It has been argued that the only J26 of 30 document produced by the Respondent was a copy of a self- employment/ Director's permit shown at page 150 of the record of a ppeal. That the said document does not show that he was a permanent resident and he thus fell foul of Section 3. Pa ragraph 1 of the Defence and paragraph 19(e) of the Counter d aim settled by the Appellant in t he Court below read as follows ; 1. The Defe,ndia .nt deni,e.s that that the Plaintiff is the :r,egistered ow.ner ,of the p .roperty known as Lot No. 14592/M Lusaka as all~ged in paragraph 1 of the statement of claim and .will aver that the said Plaint(// w .ho is a B,angladesh Citize.n is not eligible to own land in Zambia as he i.s neithe.r a Za.mbian nor in possession ,of an Investment Li,cence or Presidential Consent. 19. The Defen,dant repeats pa.nagraphs 1 to 17 inclusive of the d~fence. AND the . Defendant counterclaims: (e) A d ,e,claration that th,e Plaintiff who is a Bangladesh Citizen is not eligible to· own land in Z,ambia as .he is neither a Zambian nor in possession of an Investment Licence or Presidential Consent. J27 of 30 Paragraph 1 of the Statement of claim referred to in the Defence reads as follows; 1. The Plaintiff was at all material times the registered owner of the property known as Lot No. 14592/M situate in the Lusaka Province of Zambia. In response to the counter-claim the Respondent replied as follows; 1. The Plaintiff will aver that the Ministry of Lands scrutinized the Pla.intiffs papers and granted him the Certifica.te of Title and that the Defendant should if dissatisfied take up the issue with the Registrar of La.nds and Deed. Counsel for the Appellant relied h eavily on the cases of Ndongo v Moses Mulyango & Roostico Banda (2l; and Kalyoto Muhalyo Paluku v Granny's Bakery Limited, Ishaq Musa, Attorney General and Lusaka City Council (5l. J28 of 30 Both cases cited ~y the Appellant are completely distinguishable from the matter before us. In the latter case, the Commissioner of Lands cancelled the Certificate of Title it had earlier issued to t he Appellant for the reason that the Appellant had not satisfied the requirements that entitled foreigners to own la nd in Zambia. The Appellant sued for wrongful cancellation of his Title but failed to prove that the Commissioner of Lands had wrongly cancelled it, and his action was dismissed both in the High Court and the Supreme Court. In the former, the allegation regarding the eligibility of the foreigners to own land arose whilst the conveyance was still underway and no Certificate of Title was ever issued. In the present case, the record shows that in the lowe r Cou rt, the Appellant was DWl and his evidence is at pages 269 to 273 and nowhere in his testimony did he lead any evidence to support the assertion in paragraph 1 of his defence nor to support the declaration he sought under paragraph 19 (e) of his counter-cla im. With regard to the burden of proof, the principal reigns supreme that ((he who alleges must prove". In the case of Binwell Siame., Lomanze Banda v Regina Chapitambili !8l , while citing a myriad of J29 of 30 case law, we stated that the burden of proof rests on the party who alleges to prove its case on a preponderance of probability, and there must be evidence that is sufficient to justify the allegations. Merely making allegations in the statement of claim is insufficient to prove one's case. The averments must be supported by evidence. In this instance, the onus was on the Appellant to prove that Section 3 of the Lands Act was not complied with and he had to adduce evidence proving his case against the Respondent on a balance of probabilities. As correctly submitted by Mr. Simbao, evidence should have been led by a witness such as the Commissioner of Lands. The Appellant had the power to subpoena witnesses and documents but neglected to deploy the available tools and instead tried to shift the burden of proof to the Respondent. In the absence of evidence that the Appellant did not comply with the requirements of the said section 3, we can only speculate as to whether or not the self employment/Director's permit was the only document produced by the Respondent before his title was processed. There is no evidence that the Certificate of Title issued to the Respondent was done in a fraudulent or improper .manner. JJ. Q of 30 Having failed to prove that there was fraud or indeed impropriety as provided by Section 33 of the Lands and. De:ed Registry Act,. we find no reason to upset the findings of the lower Court. The Appeal is accordingly dismissed. Costs to the Respondent. ............ ~~ ......... ~ ...... . C. K. MAKUNGU COURT OF APPEAL JUDGE M. M. KONDOLO SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE