Julius Zulu v Watson Hankwebo and Ors (2021/HP/0259) [2022] ZMHC 71 (1 July 2022)

IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY 2021/HP/0259 HOLDEN AT LUSA~.-~\•/T";~7.;:~,-.. . (Civil JurisdictiOIJf · ,"''; · , .!' · ·, . . 1"~'-';' 1.·. ,,."J!• t i , r Jt!J"'. · 0 f JUL iOtt \ ~,, :-- (. .. . .. " ' , \ . 'i IN THE MATTER OF ':· •. ,)"~9. R01rn~;/J ,i3, ~..-0F/ THE RULES OF THE ~ ; •~ - .. ,,..,,,,,, S't1FREME£-00RT 1999 EDITION. IN THE MATTER OF: FARM NO. 175a/C/37, LUSAKA HELD UNDER CERTIFICATE OF TITLE NO. 99828 IN THE MATTER OF: AN APPLICATION FOR POSSESSION OF FARM N0.175a/C/37, LUSAKA BETWEEN: JULIUS ZULU AND APPLICANT WATSON HANKWEMBO & RESPONDENTS OTHERS UNKNOWN Before Hon. Mrs Justice Mwaaka Chigali Mikalile this 1st July, For the Applicant: Mr. E. K. Mwitwa - Messrs Mwenye & Mwitwa Advocates For the Respondents: In person J 0..1.>G::M:ENT Legislation referred to: 1. The Rules of the Supreme Court of England, 1999 Edition JI 2. The High Court Rules, Chapter 27 of the Laws of Zambia 3. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia Cases referred to: 1. Robert Simeza (Executor) v. Elizabeth Muzycche (2011) ZR VoJ.3 2. McPhail v. Persons unknown; Bristol Corporation v. Ross (1973) 3 All ER 393 3. Raphael Ackim Namung'andu v. Lusaka City Council (1978) Z. R. 358 {H. C.) The delay in the delivery of this Judgment 1s deeply regretted. It was as a result of pressure of work. This action was commenced by Originating Summons on 9th March, 2021. The applicant's claims are as follows: 1. An order for the eviction of the respondents and their agents and servants whomsoever from the physical parcel of land covering Farm No. l 7Sa/C/37, Lusaka held by the applicant under certificate of title No. 99828 otherwise described as Subdivision 37 of Subdivision C of Farm 175a, Lusaka; 2. An order for the demolition of the respondents' structures built without the consent or licence of the applicant on the physical parcel of land covering Farm No. 175a/C/37 Lusaka; 3. An order for possession of the portion of Farm No. 175a/C/37 Lusaka occupied by the respondents .12 4. Any other relief that the court may deem fit and; 5. Costs. The affidavit in support of the originating summons was sworn by the applicant. He averred that on 11th January, 2010, he entered into a contract of sale with Raymond Himalambo Mweemba to purchase the property in issue. Exhibited to the affidavit and marked "JZ 1" is a copy of the contract of sale. Subsequently, Raymond Himalambo Mweemba, now deceased, proceeded to apply for Property Transfer Tax with the Zambia revenue Authority (ZRA) and paid the requisite taxable amount of K 3,300,000 (unrebased). A tax certificate was accordingly issued to him on 25th August, 2010. These documents are exhibited as "JZ2 to JZ4". The applicant averred that an assignment was executed by himself and the late Mweemba on 31s t August, 2010, which the applicant lodged with the Registrar of Lands and Deeds at the Ministry of Lands. Exhibited to the affidavit as "JZS" and "JZ6" respectively are copies of the assignment and the receipt for the lodgement fee. On 2nd September, 2010, a Certificate of Title No. 99828 (exhibited as "JZ7") was issued in the applicant's name. The applicant also averred that he built a caretaker's house and sanitary facilities on the property. He also sunk a borehole and installed a water pump . . 13 The applicant further averred that the only person that resides on the portion of the property and who is known to him is the respondent herein. The respondent and others unknown have built a worker's house on a portion of the property which they have partly fenced off and are conducting agricultural activities and carrying on business on that portion without any lawful cause or obtaining any consent to do so from the applicant. Despite several engagements to have them vacate the property, the respondents have contumeliously disregarded the applicant's rights as the lawful owner of the property and have continued being in occupation of the same without his consent or licence. On 16th July, 2015, the applicant issued a notice (exhibit "JZ8") to the respondents to vacate the portion of the property and gave them 30 days to vacate but they disregarded the notice. The applicant issued a final letter of demand (Exhibit "JZ9") to the respondents and gave them 30 days to vacate but they equally ignored the said notice. It was further the applicant's averment that the respondent, his agents and other persons unknown have continued to illegally occupy the property. Being squatters and having no lawful claim to the property or any portion thereof, the respondents have hindered the applicant's quite enjoyment and possession of the property. J4 The matter came up for hearing on 1st December, 2021 and the respondents were not in attendance. I proceeded to hear counsel for the applicant upon being satisfied that the respondents had been duly served with process. I proceeded on the strength of Order 35 rule 3 of the High Court Rules (HCRJ and the case of Robert Simeza (Executor) v. Elizabeth Muzyeche (1) which holds that no procedural injustice is occasioned when a party who is aware of the proceedings does not turn up. Counsel for the applicant, Mr. Eddie Mwitwa submitted that Order 113 rules 2 to 6 RSC empower this court to grant the orders sought and he accordingly prayed. Matter was adjourned to 27th January, 2022 for judgment. On 10th January, 2022, however, one of the respondents, a Mr Shaft Janza filed summons to arrest judgment pursuant to Order 3 rule 2 HCR. In the accompanying affidavit, he deposed that he did receive process and on the date of hearing, the marshal advised him that the matter would not take off since the principal respondent was absent. Surprisingly, he was informed that the court had proceeded and the matter was adjourned for judgment. He attributed the failure to appear as communication breakdown between him and the marshal. He however stated that this was a matter fit to be determined after a full trial. It was the deponent's averment that the farm was given to the Janza family by the owner Mr Raymond H. Mweemba as consideration for having electrified his farm by Honour Janza using his official facility as an employee of ZESCO. Exhibited to the affidavit and marked "SJl" is the letter of offer. Until recently, bills have been issued in the name of Honor Janza. Exhibited and marked "SJ2 is a ZESCO bill. The deponent alleges fraud as he wondered how a contract of sale could have been executed on 11th January, 2010; property transfer tax applied for on 4 th May, 2010, paid for on 25th August, 2010 and yet a tax clearance certificate was issued a day before on 24th August, 2010. He stated that ZRA could not have certified before receiving payment. Further, the deed of assignment dated 31 st August, 2010 and application for consent to assign do not bear the lodgement stamp, therefore, it is unclear if the two documents were lodged at Ministry of Lands. The deponent also asserted that exhibit "JZ6" 1s a computer-generated receipt dated 24th August, 2010 for registration of the assignment and yet there is no proof that consent to assign was granted to the applicant. There is no way the applicant could have lodged the deed of assignment before paying property transfer tax. The deponent further alleges that the certificate of title "JZ7" indicates that the lease commenced on 1st August, J6 1993 when it should have commenced on 2 nd September, 2010. According to him, this is a clear act of fraud and ought to be tested at trial in the interest of justice. When the matter came up for hearing of the application to arrest judgment on 7 th April, 2022, counsel for the respondent inf armed court that they had not been served with the notice of hearing. Rather than adjourn the matter, I directed that the respondents should file their affidavit in opposition to the affidavit in support of the originating summons as well as skeleton arguments by 22nd April, 2022. The respondents, however opted to file written submissions wherein they submitted that the court has a duty to proceed as though the matter was commenced by Writ of Summons as fraud had been alleged. I have noted the foregoing submission. However, the application brought by the respondents was for the arrest of judgment pursuant to Order 3 rule 2 HCR so that they could be given an opportunity to be heard. There is no application for an order that the matter proceeds as if it was begun by Writ. Clearly, therefore, I cannot make an order for an application that is not properly before court. The respondents were given an opportunity to be heard by being granted an order to file their affidavit evidence and skeleton arguments. For the foregoing reasons, I will J7 proceed to render the judgment on the substantive application. Order 113 rule 1, pursuant to which this matter has been brought states that: Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy} who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order. Order 113 rule 3 states that the plaintiff shall in his affidavit in support state his interest in the land and the circumstances in which the land has been occupied without licence or consent and in which his claim to possession anses. From the foregoing provisions, it is clear that the applicant has to demonstrate the following: (1) That he has interest in the land in issue (2) That the respondents are in occupation without licence or consent and that the applicant is entitled to possession. As regards the first issue for consideration, the applicant in his affidavit asserts that he purchased the land 1n issue from the late Raymond Himalambo Mweemba on 11th J8 January, 2010. Property transfer tax was applied for and a tax clearance certificate was issued. The assignment was executed and lodged with the Registrar of Lands and Deeds and ultimately, a certificate of title was issued on 2 nd September, 2010. The certificate of title is exhibited to the affidavit showing that the applicant is a tenant or lessee for the unexpired residue of a term of 99 years from the first day of August, 1993 of all that piece of land in extent 8.1004 hectares more or less being subdivision No. 37 of subdivision C of farm No. 175a situate in the Lusaka Province of Zambia. As highlighted above, there is no affidavit in opposition to the originating summons but in the interest of justice and for conclusive determination of the matter, I will consider the averments made in the affidavit in support of the summons to arrest judgment dated 10th January, 2022. The respondents allege that they (as the Janza family) were given the piece of land they occupy by the late Raymond Mweemba, the original lessee, as payment for the electrification of the farm by Honour Janza, who used his privilege as an employee of ZESCO to carry out the electrification. In support, they exhibited the document marked "SJl". The respondents further allege that the certificate of title exhibited by the applicant 1s fraudulent and they highlighted the issues they considered to be wrong. I have considered these issues. On the tax clearance certificate, contrary to what was asserted, payment was made on 25th August, 2010 as the official receipt exhibited as "JZ3" shows. The letter to the Commissioner of Lands exhibited as "JZ4" confirming that the property transfer tax of K 3,300,000.00 was paid is dated 24th August, 2010 but date stamped 25th August, 2010 by the Commissioner of Taxes. I therefore do not see anything sinister. That the date '24th' was typed cannot be an issue when the stamp clearly shows 25th. Further, the registration of the assignment was paid for on 26th August, 2010 and not 24th August as asserted by the respondents. Indeed, as pointed by the respondents, the Deed of assignment and consent to assign appear not to have been stamped by the Ministry of Lands but I find that to be neither here nor there because ultimately, the same Ministry of Lands issued the certificate of title dated 2 nd September, 2010. There is nothing irregular about the fact that the lease is from 1st August, 1993 because that is when the original tenant or lessee, Mr Raymond Mweemba was issued with a certificate. The title clearly states that the applicant herein is the lessee for the unexpired residue of JlO the 99 year term granted to the late Mr Mweemba on 1st August, 1993. The terms and conditions in the original lease bind all successors in title. In light of the foregoing and there being no evidence to prove forgery, I am satisfied that the certificate of title in the names of the applicant was regularly issued. It is settled law that a certificate of title is conclusive evidence of ownership of land by a holder of a certificate of title. As such the applicant has satisfactorily demonstrated his interest in the land in issue. On the aspect that the respondents are in occupation of the land without licence or consent, I have carefully examined the document exhibited as "SJl'' alleging proof of ownership by the respondents. It reads as follows: 5th January, 2009 THIS IS TO INFORM YOU THAT I RAYMOND H. MWEEMBA OF NRC NO 155208/ 11/ 1 PLOT NO. 175a./ C SUB - HAS TODAY THE 31sr OF DECEMBER, 2008 OFFERED 10 ACRES OF LAND TO THE JANZA FAMILY. I THEREFORE HA VE NO FURTHER CLAIM TOWARDS IT. OFFERED BY: R. H MWEEMBA (signed) NRC NO. 155208/ 11 I 1 WITNESS: (signed) ASTRIDA MWALA JANZA NRC NO.: 113909/77/ 1 OFFERED TO: OFFER JANZA (FAMILY) NRC NO.: 483839/ 11/ 1 wrrNESS: (signed) HONOR JANZA NRC NO.: 441642/ 11/ 1 Jll I note that this document makes no reference to the particular piece of land offered to the Janza family. It does not state that the Janza family was given 10 acres of farm l 75a/ /C/37 family. Further, it makes no mention of the circumstances in which the land was offered to the Janza family. Thus, the allegation that the land was offered as consideration for electrifying the land is unsubstantiated. Furthermore, it is to be noted that the purported offer was in 2008 and the land was sold to the applicant in 2010. The question that arises, if at all the respondents or the Janza family had been given a portion of the land is, why wasn't this taken into account by the vendor Mr Mweemba? Further, according to the document exhibited as "JZ8", the respondents were served with a notice to vacate in 2015 and yet it appears that they never bothered to pursue the issue with the late Mr Mweemba or his personal representative. All in all, there is no evidence upon which this court can attach any credence to the so called offer letter to the Janza family. In essence, the applicant's evidence that the respondents are on the land without licence or consent has not been impugned. Clearly, therefore, this case falls within the criteria of Order 113 of the RSC. )12 Having found that the respondents have no authority to remrun on the land in contention, it follows that the applicant is entitled to immediate possession of the land. In the case of McPhail v. Persons unknown; Bristol Corporation v. Ross & others (2) it was stated that: In summary proceedings by an owner under RSC Order 113, the court was bound to make an order for recovery of possession against squatters and could not give them any time: it was for the owner to give them such time as he thought right. The above case demonstrates that the court has no discretion to give squatters time within which they can vacate. The court must give the owner of the property immediate possession. As regards the order of demolition of the respondents' structures sought by the applicant, I make reference to the case of Raphael Ackim Namung'andu v. Lusaka City Council ( 1) where it was held inter alia that: Squatters build on their own risk and if the owners of the land withdraw their permission or licence or if they decide to demolish a structure built in the absence of any pennission or other lawful relationship, the squatters' losses though very much regrettable are not recoverable in a court of law. Clearly, the applicant is at liberty to demolish the structures as the land has been proven to be his. JI3 In conclusion, I order that the applicant herein do recover possession of the portion of the property known as subdivision 37 of subdivision C of farm 175a, Lusaka held under certificate of title No. 99828 occupied by the respondents with costs to be agreed or taxed in default of agreement. Leave to appeal is granted. Delivered at Lusaka this 1st day of July, 2022 Mwaaka Chigali Mikalile HIGH COURT JUDGE 114