Mundanda and Anor v Mweene and Anor (SCZ Appeal 50 of 1992) [1993] ZMSC 122 (7 April 1993)

IN THE SUPREME COURT Or ZAMBIA 5CZ APPEAL NO. 50 OF 1992 HOLDEN AT LUSAKA B E T W E E N: KELVIN BARNABAS MUNDANDA VICTORIA GEORGINA MUHDANDA Anu 1ST APPELLANT 2ND APPELLANT PROFESSOR BENJAMINI MWEENE PROFESSOR CHERYL LOVELACE 1ST RESPONDENT 2ND RESPONDENT CORAM: Gardner, Sakala and Chai la JUS. 18th February and 7th April, 1993 H. Siiweya of Silweya and Company, with him X. Dube of Kephas Dube and Co., for the Appellants. N. M. Mumbuna of R. M. A. Chongwe and Do. for the Respondent. J U D G M E N T Gardner U. S. delivered the judgment of the court. On the 18th of February, 1bb3 we dismissed this appeal and said that we would give our reasons later. We now give those reasons. Tnis is an appeal from an order of injunction granted by the High Court debarring the appellants from ploughing land being part of Farm 215a Lusaka. The facts of the case are that the respondents purchased from nr. and sirs. dusonda a plot of land being Subdivision number R of Farm number 215a delineated on diagram No. 1204 of 1964 and being 4.5673 hectares in extent. A Certificate of Title dated the 30th August, 1989 was issued in tiie name of the respondents. Previously, in the early months of 1988, Mr. and Mrs. Musonda entered into a contract for sale to the appellants of a piece of land described in the following terms: "a plot of land of Id Acres plus borehole: part of plot 215(A) Farm." Proceedings for specific performance were Drought by the appellant against Mr. and Firs. Musonda and a interim injunction was obtained by the appellants. This interim injunction dated the loth of November, 1988 restrained Mr. and Mrs. Musonda. from transferring or parting with possession of Farm Ho. 213a or any portion or part thereof situated in Lusaka Jest in exclusion 2/........ J2 of or without tne notice or written consent of the plaintiffs (the appellants) or without tne court's order and especially with respect to the undemarcated portion or part of the said Farm No. 215a (being 10 acres in extent)." An order for specific performance dated 30th of March, 1989 was granted to the appellants and related to "a portion (10 acres) of Farm No. 215a Lusaka West". Ke are informed oy Hr. Silweya, for the appellants, that the order for specific performance has not been put into effect Decause Mr. and Mrs. Musonda could not. oe contacted, and no application had been mace for execution of an assignment by the court. In July, 1990 the respondents became aware that the appellants were ploughing a large portion of Subdivision R and it was anticipated that they would shortly be planting crops on tne lana. An application was therefore made for an interim injunction to restrain the appellants from ploughing the land and such an interim injunction was granted, subsequently, the appellants applied for, and were granted, a stay of that interim injunction but the respondents successfully applied for tne stay to be removed, me injunction is therefore still in Force and is tiie subject of Lais appeal, In tiie proceedings before the High Court an affidavit by the Registrar of Lands and deeds was submitted. In his affidavit tiie Registrar confirmed that tne order of interim injunction granted to tne appellants in the case against ths Musondas was entered on the register on the 6th of December, 1938, out ne said that he believed that that order had not related to duodivision R which was tne subject of the assignment registered in favour of the respondent. The learned trial judge, after hearing arguments from both parties, held that the respondents had a certificate of Title and, therefore, grime facie legal ownersnip. The learned trial judge also held that it would be improper to resolve the question as to ownership of the land at that stage and she granted the interim injunction in favour of the respondents. Hr. silweya on behalf of tiie appellants argued that the appellants, having ueen the first to occupy the land, the learned trial judge should have accepted that the status quo was tnat the appellants were entitled to plough the lano ano tnat no order should be made restraining them from so doing until the issue as to who was the legal owner of the land was finally decided. Mr. Silweya's argument was that, after having obtained an order for specific 3/............... J3 perforaiancs tor Lie sale of tna iduo co oue apyellunis, this order was jzarumounc and ho disputed cue entry of tn? res.uonuent-2 in tna taiidu ano leeJs registry. .-io sain mat the appellants ooviously aau a prior clai-u. Jr. Juoe, also on aeaalf of the appellants, argued tnac no injunction should have been granted in this case because the ploughing of the land had not caused irreparable numcm r.o tne Uau ana my damage could nave ween compensated for in damages. • if. mUmouna on ia^nalf me r’eo;?Oiik^et ar.;-eu ciiat, as tile respondents iiau a Certificate of litl? to me Imo, mcir ri fit to tn”' land was clear, and, until diat ri got was set asiue jy an uruer or me court, 'muy were unci tied co occupy the land and to use it. i/ur atto.'iiion .-iis urawa tu a sketch plan chnexeo to an application oy me appellants for psridssion m subdivide cue land on ranr. d15a. Fnis application was an applicacion cy tn a appellants for permission Lu subdivide moui vision ish of rdrift .10. Jia w:;im ^3 shOwc on v.ic SKrtcri plan uj uemg directly adjacent to SubuivlSiOil a Ilin tv COiiCalii In '-v-'U^ ... necmris. :.r. jiiweyd, aitnough ne was unable to give ,-vmciT-m, was mviceLi uy cue court to t-.xpidin me reidtioiisiiip of auouivision h. 1 to mu Imd referred to in tnis action, ic tula tiic court that nis clients bjouglrt anal Lucy iiau pui'cnast'O ooc;i oduuivisiun riu anc cuoclivision sk, and ne riic'S‘..jlr uno iHscraCLvu ui:!y un apply iur speciiic perfcr.iiuncs relating to one plot oi i<!<"<„ in extent it acres. we agree witii the learned trial juuje trial the possession ot a Certificate of Title is pri.na facie uusoiute prouf of an uiiaSSailaule ri^ht to the property. ;ie appreciate nr. 01 Iseya's argument cnat at me time of me granting of the interim injunction 'cho appellants had crops octuaily growing on the land and in those circumstances it may Tave ueen prefers il^ for me Learned trial judge to postpone the interim injunction until me crops had ouen narvesteu. However, those events took place over two years ago and on me general application of the law wc would agree that the respondents nave the ownership of toe luiu unless or until their title is sec asioe. He do not agree xim .m. diiweyu teat tne cranting of the injunction pre-judges tne final issue as to cwfiersi’iip jf title, (■■jcit regains to be decided in the main action. with regard to i.r. ijuoc's argui.iciit moi. plougiiing tf ia*iu ucg irrupdrc.iJic1 damage we agree that injoneuions juuulc nut usuaiiy grantee m such circu isLances. However, this arguinent was not put oefore tiie learned trial judge in any or me. 4/......... - J4 proceedings in the court Delow. The appellants relied solely on the argument that they had a prior right to the land. Nor is this argument contained in the grounds of appeal or the heaas of argument. We understand from Hr. Silweya that both parties wish to plough the whole of the land and not some small portion of it. In these circumstances it would oe inequitable to deprive the prima facie legal owners of the land of the right to plough it and Instead to grant a right to plough the land to persons who have not yet established their right to this particular piece of land, that is. Subdivision R of Farm 215a. In this respect we would comment that the area of Subdivision R namely 4.5673 hectares is equivalent to 11.2862 acres whilst the area of Subdivision MM of 4.5 hectares is equivalent to 11.1195 acres so that the reference of 10 acres in the injunction and order for specific performance against Mr. and Mrs. Musonda could apply to either subdivision. For the reasons we have given this appeal is dismissed and we order that the respondent make application for an order for directions in the action. If the respondents fail to take out such order within 14 days of the 18th of February, 1993 the appellants have the right to apply for such ah order. Costs of this appeal will follow the event. B. T. GARDNER SUPREME COURT JUDGE F I SAKAI A SUPREME*COURT JUDGE M. S. CHAILA SUPREME COURT JUDGE