Kaulmas Investments Limited v The Commissioner of Lands (2018/HP/1965) [2024] ZMHC 281 (18 December 2024)

.. IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN A T LUSAK.ll. (Civil Jurisdiction) BETWEEN: BLICO 11COUHT0 PRINCIPAL 1 E 0cC 2024 REGISTRY ·2 2018/HP/1965 KAULMAS INVESTMENTS LIMITED 50067, LU PLAINTIFF AND THE COMMISSIONER OF LANDS THE ATTORNEY GENERAL " 1. ' . ' • PAT. RICK CHALWE SICHA. LWE EDWIN KATONGO MWENDAPOLE 1 ST DEFENDANT 2 ND DEFENDANT 3 RD DEFENDANT 4 TH DEFENDANT BEFORE THE HON,OURABLE MR. JUSTICES. V. SILOKA ON THIS 18th DAY OF DECEMBER, 2 024. For the P laint iff : Major Lisita C. A of }l!esser)s Central chambers; For t h e 1st& 2 nd Def e.nde!,n.t: Ms. A .. C Chisenda, State Advocate; For the 3 rd & 4 t h pef~1'tq~nt: Mr . . D Mtonga & T Mendez) from Messer)s Paul ]Vora, Advocates. - -·- -· - ·- ---- - -- - - -· - - -- RULING CASES REFERRED TO: 1. 1\/Jumba (Suing on behalf of the J(alindav_1al0Mndikula Royal Farnily) v. Nsangu and Others (Appeal 31 of 2012) {2022} ZMC--:A 6; .2. Aaron Chungu v. Peter Cha nda & 9 Others SCZ/ 08/ 02/ 2023)· 3. Crossland IYlutintci and Others v. Donovan Chipanda (Selected Judgement No.53 oJ-201 Bt 4. JCN Holdings Limited v. Development Bank of Zambia (SCZ Judgement 1Vo.22/2013t 5. Zambia National Holdings Limited & UNIP vs. Attorney General (1993/ 1994) ZR p 115; 6. Antonio Ventriglia and Another vs Finsbury Investment Limited Appeal No 02/ 2019; 7. Owners of the rnotor vessel '(lilians vs Caltex oil (Kenya) Limited 1989 KLR.19. LEGISLATION AND OTHER WORKS REFERRED TO: 1. High Court Act Chapter 27 of the Laws of Zambia)· 2. The Lands Act Chapter 184 of the Laws of Zarnbia)· 3. The Rules of the S~preme Court of England 1965 (White Book) 1999 edition. 1.0 INTRODUCTION 1.1 This matter was comn1en ced b y W'rit of summons accompaiiied· by a statement of claim dated 13th November 2018 . 1.2 The Plaintiff prayed for vario·us reliefs, one of the reliefs being a d eclaration that the Certificate of Re-entry entered on Plot or Farm Nurnber F/2344/A/48 and Farm Number F/2344/J.f\../29 by th.e 1st Defendan t was not done 1n accordance with th e law and is n 111l and void ab initio. -R2- . 1.3 However, the 3r d arui 4 th Defenda11t filed a Notice to raise a preliminary issue on a point of law which was accompanied by an Affidavit in support a11d skeleton arguments 1n support, all dated the 27 th of November 2024. 1.4 In the Notice to raise Preliminary issue, the following ground was raised for determination: 1. Whether or not this Honourable Court has jurisdiction to hear arid determine the m,atter herein in light of the recent Supreme Court decision in the case of Aaron Chungu v. Peter Chanda & 9 Others SCZ/08/02/2023 Judgement delivered·on the 22 nd June 2023? 2.0 AFFIDAVIT EVIDENCE IN ·SUPPORT OF APPLICATION 2.1 The affidavit in support was deposed to by Nathalie Nbuyi, who deposed . that h.e is an Advocate of the Suprerne Court seized with conduct of the matter on behalf.of the 3 rd and 4 th Defendant therefore competent to depose to the Affidavit from facts within his perS6r1al knowledge. . - . . 2.2 The Deponent deposed that the Plaintiff herein commenced this a.ctio11 against the Defendants by way of Writ of summons and Statement of claim. 2.3 The Deponent also deposed that he verily believes that the proper Court clothed vvith power to hear and determine matters regarding re-entry is the Lands tribunal: 2.4 The Depone11t further deposed that in his well considered view which he verily believes to be true, that this H'onour able Court has no jurisdiction to hear and determine matters regarding re-entry of property like this mJitter h ereir1. 2 .5 Further, it \Vas deposed that it is on the premise above that he craves the indulgence of this 1-Ionourable Court to grant the 3 rd and 4 th Defendant an Order disrriissing the matter for want ·of jurisdiction. 3.0 APPLICANT'S Sl{ELETON ARGUMENTS IN SUPPORT 3. 1 Counsel subrr1i tted that this Application, was made pursuant to Order 14A of the Rules ·of the Supreme -R4- .. ' . . ' Court of Englan.d 1965 {'l~?h.ite Book) 1999 edition which p rovides a s follows: "The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter · at any stage of the proceedings \Vhere it appears to the Court that- a) Such question is suitable for determination without a full trial of the action and b) -su·ch determination will finally det ermine (subject ·only to any possible appeal) the entire ca,use or matter or any claim or issue therein." 3 . 2 Coun.sel referred 'the CoT1r t to th e ca se of Mumba (Suing on behalf of the Kalindawalo· Mndikula Royal Family) v. N·sangu and Ofh'.ers --f-1 ) wher ein the ·c ·ourt h·eld th at: "Our positiori is that by its very nature, an appl ication ·under Order 14A of the Rules of the Supreme Court, 1999 edition s e eks to determine t h e · c ause or dis pose · of it ·on a point of law, wit~ho-u t a full t rial." -RS- , ., . ... ' ' ' .. . .. . . ' . ... .. 3.3 Counsels r eferred th e Co11rt to Section 13(1) of the Lands . Act Ch~pter 184 of the Laws of Zambia, which ~ . provides that · s'i.1ch matters be heard by the Lands Tribunal and not the High Court, it provides thus: "1) Where a lessee breaches a term or condition of a covenant under this Act the President shall give the lessee · there ·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 reptesentations as to why a certificate of re-entry should not be · entered in the· register ... (3) A lessee aggrievea··with the ·decision of the President to · cause a certificate of re-entry to be entered in ·the register · may within thirty days apj)eafto th'e-' Lands Tribunal for an o·rder that the register be rectifie•d." •· 3.4 Cour1sei further referred tlie Co·urt' to the case of Aaron Chungu· · v .. 'Peter Chanda & ·9 ·Others(2 l wherein the Court held that: ·- · ' . ' ~ L, .• • •• •• • , _ f,/' . . -R6'. ' . '· I ; , •• : i • • la . . ' ' . ' •• 'i,, " ... It should be note d that the Union Gold case involved a declaration and not a re-entry under section 13(3)of the Lands Act. The explanation which followed with regard the High Courts Jurisdictio~ did not cover section 13 (3) and the unlimited jurisdiction of the High Court should be understood ,vithin : that context. The correct position the'refore is tl1at, while the High Court has unlimited jurisdiction in land matters; its Jurisdiction is limited as in this case by section i3 (3) of the Lands-Act.'; 3.5 It was · c:·ounsels submission that the above cited authorities have clearly a.11.d unambiguously settled the issue of jurisdiction in .. cases of · r e-entry. Counsel submitted th.a t if'therefore .follows that this Honourable Court does not have jurisdiction to hear and determine the rr1atter as th.c same borders on re-eriti-y. 3 .6 It w·as Counsel's st1bmissio11 that it is trit e 1aw that whenever tlie Jurisdiction of the Court to hear a matter -R7- is raised , th e iss1...1e m-u st be addressed a nd d etermin ed b efore the h e3:Tin g of tl~e m atter can p roceed. This is b ecause everythir1g d one without ju risdiction is a nullity . 3. 7 Cou nsel ref erred th e Court to the case of Crossland Muti11ta and Others v . Donovan Chipanda 131 wh erein the Supreme Co·urt h eld th.a t : "In Vengelatos case referred to in paragraph 44, we held that: the absence of Jurisdiction nullifies whatever decision· tl-iat · follows from such proceedings. Similarly in · the present case, we conclude that the ·ab'sence of jurisdiction on the part , of the magisf rate · nullified proceedings • ID the Subo1~dinate Court. To that extent, it was a futile exercise on: the part of tlie High Court to purport to cons ider an appeal ·and consequently-uphold a ju·dgentent of the- trial magistrate ·when, for want of j urisd ic'tion, t he court proceedings from which it a1·ose we r e n·ull a nd void ab initio. As we said in the Ven gelatos case·, the-decision ·or a Court which • " • > I • : .... ' t t , •• .. : ," • •:j: ~ -{, • • I . ~ I • I , : • • ·. . . . . . . . . . t • , 1'• ., I purports to exercise a jurisdiction it does not have amounts to nothing. This is better illustrated by the Latin .maxim ex nihilo nihil fit (from nothing, nothing comes)." 3. 8 Further r ef erer1ce vvas m a de to the case of JCN Holdings Limited v. De~ elopment Bank ofZambia14lv,herein the Supreme Court h eld that: "Also, it is settled law that if a matter is not properly before a 'Court, that Court has no jurisdiction to • make any orders or grant any .. reme 1.es. d . ,,: • y 3 .9 It was CO'un.s el ~s· su.bmission tr1at this matter be dismi-~s ed . on · the gr'oun·d that this Court lack s the jurisdiction· to }1ear it, and any further proceedings by the Co·urt' will be considered a nullity. 4.0 HEARING''. 4 .1 The m a tter · came up for h earing of the 3 rd and 4 th Defen dar1t's application on tbe 4 t,h of November 2 0 24. The applicant r elied · on the doc1rments filed into Courts . -R9- .. . . 4.2 Counsel fo r the Plaintiff in.forn1e d the Court that they are in r eceipt of tbe said a pplication arid infor1ned the Court that they had no intentions of opposing it. 5. 0 ISSUES FOR DETERMINTION 5 . 1. The following issues has b een framed for determination: i. Whet her th.e application to dismiss this matter on a point of-la·w is properly.before ·court? ii. Whether this Court has the ·Jurisdiction to hear and detern1ine a matter of property re-entry? 6. 0 ANALYSIS AND DECISION OF. THE COURT 6 .1 I h.ave conside r ed tb.e argumerits· a dvar1ce0 in connection to the Application b efore· me:·· . . · ·., 6.2 This applic~tion ·was :rna.de pu1-suant to· ·order 14A Rule 1 t • • I \ of the · Rules· o f the · Supreme Court of England 1999 edition, which provides= that; - •, . . ... '' (1 ) 'The Court may upon the application of a pa·rty or· of its own motion . determine any · question ,of law or con struction of a·ny· document arising in a·nJ7 cause or matter at any stage of t he ·proceedings ·where it appears to the Court that - I • • -RlO- • : . ' I • : .• . I t. r .. '1 I • (a) such q11estion is suit able for determination w ithout a full trial o f the action, and •~ • r f '", I :_' j • : • ~ •I l • (b) such determination will finally determine (s11bject only to any possible appeal) the entire cause o r matter or any c laim or issue therein ... " 6.3 The ·ab0ve · provision· is ·clear: and clothes th e Court v11th the power ' to d e{erinir1e any question of law or construction-of an.y document arising "without a full trial . of the action." at any stage of the proceedings , where · it ,'appears ·:. to · · the · Court ·that such determination will finally d etermir1e the proceedings or an is sue therein:~ 6 . 4 In · casu the question. raised is whether, I have jurisdiction to adj udicate over this matter. If the ar1swer _,is in the negative, the whole matter will b e fmallv determined without the need of a trial. In this .., vein. I have satisfied mys elf that this a pplication is properJy b efore m e as this is a matter suitable for determination \vitho-ut a full trial, as the -Rll- d eterminatior1 of this p oint of law raised will finally determine the entir e cause. ii) Whether t his Court has the Jurisdiction to hear and determine a matter of re-entry? .. 6. 5 It is tr ite _that though t h e High Court h a s unlimited jurisdiction. Its jurisdiction is not without limit, the Supreme Co-urt has guided t o this effect in a number cases inter a lia t h e case ·of Zambia National Holdings Limited & UNIP vs. Attorney General !5 l. Furth er, the Sup r em e Court in the said cases h a s guided th at th e Court's jurisdict ion is lim ited by the Constitution and differen t laws .· 6.6 In casu th e lavv in ·-qu estion is ·section 13(3) of the Lands Act ~ hapt e r 184 of the Laws of Zambia , which provides t l1at: · ''(3) A les s ee aggrie ved with the_ de cision of the President to cause a certificate of re-entry to be e nte re·d in tl1e register may · within thirty day s appeal to t he Lands Tribu11al for an o rder that the reg iste r be rectifiedo"(emphasis mine) -R12-· · ' ' . ' . ' . . ' 6 .7 From the above it is clear that the forum for one who is not satisfied with a re-entry is the Lands Tribunal and •· ' .. _ •,. ~ - . . --.. . ' . . not the 'High Court. The said provision is not ambiguous in any way and does not extend jurisdiction to the High Court. 6.8 In this vei11 I arn_ of the view that though I am reposed with µnlimited _ jurisdiction, · section 13(3) of the Lan·ds Act does · place a li1nitatior1 on the jurisdiction. vis-a-vis re-entry matters·. I am fortified in making this finding by the Suprem.e Court's decision in the case of Aaron Chungu v. ·Peter Cha-nda & 9 Others (2l cited by co·unsel for tl1e 'Defendant i~. support of the application. Wherein the . Court guided as follows: · · ' . " ... It sqould. be noted that the Union Gold case involved a declaration and not a re-entry under section t3(3) of the Lands Act. The explanation w-hich followed : witl1 regard the High Courts Jurisdiction' did no~_ c~ver section 13 (3) and the unlimitet!i'f!~isrJiction ·or the High Court should be ' . . understood -~·with.in .. that . context. The •Correct .... . . . . ' ! . . . -, : r. : ;(·~, ;, ~• ,•: ' • • I:•.~."•· ,, ,.,. . . . . '-""• ' ~ ' • ..,_' . 'I , •, . . ,·· • position therefore is __ th~t, while the High Court has unlimited ju1·isdiction in land matters; its . . ' . jurisdiction is limited as in this case by section 13 (3) of the Lands Act." (emphasis mine) 6 .9 I therefore, er1dorse the decision of the Supreme Court and find the issue in.t he negat ive . That is to say I have no j urisdictio11 ·to hear this matter . The r ight forum is t h e Lands Tribunal as p er Section 13(3) of the Lands Act Chapter 184 of the Laws of Zambia . 6.1 0 Further g uidaT1ce is . gotten from Suprem e Court in the case ·of Antonio Ventriglia and Another vs Finsbury Investment Limitedt?I in which the Court agreed · with the Keny an Co1.rrt of Appeal 's ob servation in the case of . . Owners of tl1e · motor· vessel '' lilians vs Caltex oil (Kenya) Limited (7 l in stating that: . . ._ "Jttrisdiction · is everyt.l1i ng , ' [and · that] w itho:J.t it a court has no power to m ake one more s t ep. Where the Court takes it upon . . . . . . itself to exercise ajurisdiction which it does . • I I . . . -R14- . ' . ' , . . . ' . • l ,; ... • not possess, its decision amounts to nothing." 7.0 CONCLUSION 7. 1 In view of the foregoing, I hereby find that there is merit in the application by the Defendant and accordingly dismiss this• matter 'for ·wai1f of ju.risdiction. 7.2 On the q·uestior1 of costs seeing as this matter was commenced 2018 wher1 there was general misapprehension as·to the ·dual forum for land matters as explained · in the . A~ron Chungu case above. Also considering that th.e Plair1tiff has been' magnanimous enougl1 to-concede; I order that each party shall bear their . .. cost. · . , . . . ' DELIVERED AT' L. USAKA THIS fgTH DAY OF DECEMBER 2024. ' . S. V SILOKA · HIG lH COURT JUDGE I • -R15- . . p. .. ; . . . . . . ! '